On 21 December 2020. The Director of National Fiscal Information issued an individual interpretation (0111-KDIB2-1.4010.443.2020.1.BKD) regarding the determination whether a taxpayer conducting transactions for which the price is determined based on the provisions of the Decree issued under the Aviation Law is exempt from the obligation to prepare transfer pricing documentation.
In the facts described above, the basic subject of the activity conducted by the Applicant is the ground handling of aircraft (PKD 52.23.Z) provided at the airports in Poland.
For transactions involving the use of airport infrastructure by the Applicant, the way of determining the price results from regulations issued on the basis of Article 182 point 5 of the Act of 3 July 2002. Aviation Law.
Under these regulations, the minister responsible for transport is delegated to determine, by way of an ordinance, the detailed conditions for the provision and use of airport infrastructure and the determination and collection of fees for access to airport facilities and surfaces and fees for the use of centralised infrastructure. In accordance with the statutory delegation, the detailed conditions for, inter alia, determining and collecting fees are regulated in the Regulation of the Minister of Transport, Construction and Maritime Economy of November 19, 2013 on ground handling at airports. The Ordinance does not specifically indicate the amount of fees, but Chapter 5 of the Ordinance indicates, among other things, how the fees are to be determined. It also stipulated that fees may be charged in justified cases (an open catalog of such cases was indicated), that they should be announced in a place accessible to interested entities and communicated to the competent authorities, that the amount of fees should be subject to consultation at least once a year.
The subject of the individual interpretation was to determine whether the Applicant may take advantage of an exemption for the aforementioned transaction under Art. 11b(1) of the Corporate Income Tax Act.
According to Art. 11b point 1 of the Corporate Income Tax Act, the provisions of chapter 1a Transfer pricing “shall not apply to: controlled transactions in which the price or the manner of determining the price of the object of such controlled transaction results from the provisions of laws or normative acts issued on their basis”.
It follows from the literal wording of the aforementioned provision that the exemption from the obligations under Chapter 1a of the Corporate Income Tax Act applies only when the price results from the provisions of the Act or other normative acts issued on its basis.
In the tax authority’s opinion, the taxpayer is not obliged to prepare the transfer pricing documentation referred to in Art. 11k of the Corporate Income Tax Act.
The taxpayer’s position was found to be correct.
Author: Beata Rawa – Transfer Pricing Manager