Once again, the Provincial Administrative Court (WSA) in its judgment (ref. I SA/Po 39/20) issued on 13 May this year confirms that the regulations concerning information on MDR tax schemes may be subject to individual interpretations.

In the disputed case, the Director of National Revenue Information (hereinafter referred to as DKIS), in a decision of September last year, refused to initiate proceedings in the case of the Company’s application for the issuance of tax law interpretations, inter alia, to determine whether the definition of tax benefit within the meaning of Article 3(18) and Article 86a § 1 of the Tax Ordinance will be met in the case.

According to DKIS, the subject of the request was an issue which does not concern the interpretation of substantive law provisions. According to the authority, the questions asked by the Company went beyond the procedure governing the issue of individual interpretations. In its judgment, the Court agreed with DKIS’ view that only substantive law regulations are subject to interpretation, not the rules of tax proceedings. However, the court held that the norms resulting from the regulations specifying the obligations to report on tax schemes are of substantive legal nature.

In the Court’s view, DKIS erroneously held that the provisions of the Tax Ordinance governing the obligations to report on the tax schemes do not constitute tax law provisions subject to official interpretation by way of individual interpretation.

In the Court’s view, the subject of interpretation may be the tax law provisions concerning various obligations of a taxpayer, not only the content of the tax obligation. The subject of a request for an individual interpretation may be the substantive law provisions excluding procedural and counteracting tax avoidance regulations.

A similar position was presented in the judgment of the WSA in Gorzów Wielkopolski of 8 April 2020, file no.: I SA/Go 61/20.

 

Author: Beata Rawa – Transfer Pricing Manager

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