On 8th September 2021, a draft act amending, among other, the Act on Personal Income Tax Act and the Corporate Income Tax Act, was published on the parliamentary website as part of the so called ‘Polish Deal’. According to the draft act, article 15e is to be removed from the CIT Act.
It would seem that this change means that the current limitation of the costs of intangible services purchased from related entities will soon cease to exist as a concern for taxpayers. In practice, however, the draft provides for stricter regulations for some of them.
In place of the deleted provision specifying the limitation of deductibility of intangible costs, the legislator introduces a minimum income tax (Article 24ca), set at 10% of the sum of:
- 4% of the value of revenues ‘other than from capital gains’ and
- ‘excess expenses’ (i.e. debt financing over 30% of tax EBITDA (Article 15c) and, inter alia, part of the costs under the former Article 15e, i.e.:
- advisory services, market research, advertising services, management and control, data processing, insurance, guarantees and warranties, and services of a similar nature,
- all kinds of fees and charges for the use or the right to use the rights or assets referred to in art. 16b paragraph. 1 points 4-7 of the CIT Act,
- transferring the risk of the debtor's insolvency due to loans other than those granted by banks and cooperative savings and credit unions, including liabilities resulting from derivative financial instruments and benefits of a similar nature.
incurred for the benefit of related entities, in the part in which they exceed by PLN 3 million the amount of 5% of tax EBITDA (determined in a manner similar to the current wording of Article 15e).
Importantly, the draft does not include the existing exclusions from the limitation of costs directly related to the production or provision of services, as well as the protective power of the obtained Advance Pricing Agreement (APA).
The proposed changes may imply that entities which obtained APA or rulings confirming the exemption from the limitation of Art. 15e, will have to tax the ‘excess costs’ of intangible services from related entities in the future.
Nevertheless, on the basis of the proposed transitional measures, taxpayers who acquired the right to deduct costs under Art. 15e before the end of the tax year which commenced prior to 1st January 2022, retain the right to this deduction after 31st December 2021, on the terms described in this provision.
The above issue should require careful analysis at the stage of further legislation process, but it is already a revolution in the understanding of the specificity of limits on intangible services introduced in 2018.
Despite the announcement of the Ministry of Finance that the minimum tax will apply only to the largest corporations, it may apply to all taxpayers who have suffered a loss or whose income is below 1% of operating revenues.
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