The Minister of Finance has undertaken an interpretation of MDR regulations (section III, chapter 11a of the Tax Ordinance) for the first time by means of a general tax ruling (general ruling dated 24 December 2024 on the qualification of operating lease agreements under the provisions on tax schemes).
While in the initial period of application of the MDR provisions the issue of qualification of operating lease agreements under said provisions raised significant doubts, recently, also due to the position of the Ministry of Finance presented in the published questions and answers (Q&A), it is quite commonly assumed that the potential emergence of information obligations under the MDR provisions in such cases depends on the circumstances of the case, and in particular the motivations of the lessee.
The above was confirmed in the general ruling of 24 December 2024, where the Minister of Finance clarified that it is not the case that the conclusion of an operating lease agreement will never meet the conditions for recognizing it as a tax scheme or that an operating lease may only meet the generic hallmark referred to in Article 86a § 1 point 6 letter d of the Tax Ordinance (activities carried out as part of the arrangement are based on significantly standardized documentation or take a significantly standardized form which does not require significant changes in order for the scheme to be implemented for more than one beneficiary). As the Minister indicated, operating lease may also meet other hallmarks - depending on the circumstances of a given arrangement, which should be examined on a case-by-case basis.
Furthermore, the Minister of Finance indicated that "it is unjustified for lessors to report tax schemes in the event that:
- the main benefit test is not satisfied (no tax scheme will arise at all due to the failure to meet the definition of Article 86a § 1 point 10 of the Tax Ordinance);
- leasingodawca, co do zasady, nie ma wiedzy czy kryterium głównej korzyści jest spełnione, ale zawarcie takiej umowy może potencjalnie oddziaływać na obowiązki podatkowe leasingobiorcy” (p. 8 of the general ruling).
As the Minister of Finance emphasized in the issued general ruling: "[MDR] Guidelines clearly indicate that the obligation to report tax schemes will only apply to information known to the submitting entity and in his possession. The entity submitting the information on tax schemes is not obliged to seek information not provided to him by the beneficiary and not falling within the information obtained within the limits of due diligence generally accepted in business relations" (p. 8-9 of the general ruling).
It is worth noting that, according to the standpoint of the Minister of Finance, in relation to operating leasing, the following actions should be considered a tax scheme, leading to:
“1) concluding an operating lease agreement between related entities instead of concluding another agreement, which may result in a circular flow of funds or a change in the taxation rules;
2) payment by the beneficiary of fees for concluding a lease agreement to a non-resident, which will exceed the thresholds specified under the other specific hallmarks (PLN 25 million of income/revenue of a non-resident or PLN 5 million of hypothetical withholding tax)” (p. 11 of the general ruling).
In case of any questions regarding the discussed issues, we remain at your disposal.
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