On 1 June 2021, the Act Amending the Customs Law and Certain Other Acts (hereinafter: the Act) enters into force, amending, among others, the Act on the rules of registration and identification of taxpayers and tax remitters as regards taxpayers whose tax identifier is the PESEL number. Starting from this day, taxpayers affected by the amendment will have 30 days to obtain a PESEL number.
Issues with obtaining a PESEL number
The current regulations indicate that in case of taxpayers who are individuals included in the PESEL register who do not conduct business activity or are not registered taxpayers of VAT, the tax identifier is the PESEL number.
According to the provisions in force since 2018, the PESEL number is automatically granted to a foreign national together with the fulfilment of the address registration obligation (if the foreign national intends to stay in the territory of Poland for more than 30 days).
Since the above mentioned provisions came into force, assigning tax identification numbers has become a subject of much controversy. The authorities have applied the provisions inconsistently. The problem was encountered mainly in relation to foreign nationals who, for various reasons, could not register in Poland, e.g. those who, during their stay in Poland, were accommodated in hotels or stayed outside Poland. In such situations, the regulations provided for the possibility of assigning a PESEL number upon an application addressed to the appropriate municipal office.
The key element of the application was to indicate an appropriate legal basis from which the obligation to have a PESEL number arose. The above circumstance was at the same time the most frequent reason for leaving the application unprocessed by the municipal office, as the foreign national, not being familiar with special regulations, was not able to determine such a basis. Tax regulations (which were often referred to by foreign nationals) did not provide a clear basis enforcing the municipal officers to issue the PESEL numbers. On the other hand, pursuant to Article 3 of the Act of 13 October 1995 on the rules of registration and identification of taxpayers and tax remitters, in other cases (i.e. when a person does not meet the conditions for obtaining a PESEL number, but at the same time is subject to the tax registration obligation), the tax identifier for them was the NIP number. Unfortunately, the practice has shown that the approach of tax offices in such situations towards foreign nationals was extremely disputable and very often NIP-7 identification applications were rejected. The tax offices justified their actions with the necessity to fulfil the obligation to register one’s stay at the specific address and therefore to obtain a PESEL number.
Favourable changes in the law, but little time to obtain a PESEL number
The Act passed on 1 May 2021 with respect to tax identification (which comes into force on 1 June), aims to unify the approach of the authorities to granting tax identification numbers, in particular to:
- bringing new solutions to the legal order in the field of taxpayer identification by ensuring that taxpayers (mainly foreign nationals) not conducting business activity or not being registered VAT taxpayers, who do not have registered stay in the territory of Poland but are obliged to use a tax identifier and reconcile taxes with the tax authorities, will obtain a PESEL number;
- streamlining the process and limiting potential difficulties related to obtaining PESEL number on the part of taxpayers - especially in cases where the PESEL application was not processed due to the taxpayer referring solely to his tax obligation in Poland;
- enabling access to one’s tax return in the Twój e-PIT official government service.
Starting with 1st June - taxpayers will only have 30 days to change their NIP number to PESEL
According to the new regulations, taxpayers who have been using their NIP number in a situation when the correct identifier was PESEL or who do not have any tax identification number yet, will have 30 days from the day the Act comes into force to obtain a PESEL number.
The application, together with supporting documents, should be submitted to the appropriate municipality office.
Foreign nationals who will arrive in Poland after 1 June this year, being citizens of a European Union Member State, the European Economic Area or Switzerland, will be obliged to register at the place of permanent or temporary stay (complete an address registration) no later than 30 days from the date of arrival at the place of stay. Foreign nationals from so-called third countries are obliged to register no later than on the fourth day after their arrival at the place of stay in Poland. The PESEL number will be granted when this obligation is fulfilled. From the tax perspective, it is important that the PESEL number is obtained at the latest by the time of filing the first tax return, statement, information or declaration, tax registration or making the first tax payment or advance tax payment.
Potential difficulties
It is worth taking into account the fact that in the era of the pandemic we may encounter considerable delays on the part of offices caused primarily by the limited mode of operation. Therefore, it is particularly important to take action in this respect and to correctly submit applications for PESEL numbers as soon as possible.
Taking into consideration the short deadline for obtaining a PESEL number imposed by the Act and the varied mode of operation of the authorities, it is important to remember about the principles of obtaining identification numbers (when registering or submitting an appropriate application for granting a PESEL number or its confirmation if, for example, it has never been collected from the office when one previously had made their address registration) in order to minimise the risk of the application being questioned by the authorities, which may delay the process and entail possible adverse consequences for the taxpayers, including receipt of a summons for explanations from the tax offices.
Tax remitter obligations
Companies employing foreign nationals should pay attention to whether the documents submitted to tax offices include the correct tax identifier. The annual salary statements, the so-called PIT-11 forms prepared in accordance with the practice of entering, for example, strings of digits (in the absence of a PESEL number), under the new regulations will be considered incorrect. This, in turn, will make it impossible or considerably more difficult for the taxpayer to fulfil his/her tax obligation and will result in the lack of access to the Twój e-PIT service due to the hindered process of identification of the taxpayer by the tax office and extension of the process of submission of the annual return.
How we can help you:
- We will analyse individual cases and identify employees obliged to change their tax identification number from NIP to PESEL and employees who should obtain a PESEL upon arrival in Poland.
- We will identify the most optimal way to obtain a PESEL number and we will assist in the preparation of the relevant applications, especially in the case of persons not residing in the territory of Poland.
- We will help you minimise the risk of receiving requests for explanations from the tax offices in light of the upcoming changes.
- We will support you in the proper fulfilment of the tax remitterr's and taxpayer's duties in accordance with the applicable tax regulations.
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