The Minister of Finance issued another general tax ruling of MDR regulations (section III, chapter 11a of the Tax Ordinance), this time regarding „legally protected professional secrecy” of a promoter and supporter on the grounds of provisions on tax schemes.
On one hand, the Minister of Finance indicated that the promoters or supporters entitled to be exempt from submitting information on tax scheme (MDR-1) to the Head of the National Revenue Administration (NRA) due to legally protected professional secrecy, under Polish regulations are: lawyers, attorneys-at-law, tax advisers and patent attorneys. On the other hand, however, the Ministry of Finance clearly listed notaries, auditors, accountants and bankers as not allowed to exercise this right.
Regulatory environment
The basis for the Minister of Finance in the above matter constituted the following:
- judgment of the CJEU dated 8 December 2022 in the case of Orde van Vlaamse Balies and Others (Case no. C-694/20) (previously discussed in the following newsletter),
- judgment of the CJEU dated 29 July 2024 in the case of Belgian Association of Tax Lawyers and Others (Case no. C-623/22) (previously discussed in the following newsletter),
- amendment to the Council Directive (EU) 2018/822 dated 25 May 2018) (so-called DAC6), introduced via Council Directive (EU) 2023/2226 dated 17 October 2023) (so-called DAC8).
The Minister of Finance emphasised that in the light of the above CJEU judgments, in relation to "legally protected professional secrecy" referred to in Article 86b § 4 of the Tax Ordinance (in relation to the promoter) and Article 86d § 5 of the Tax Ordinance (in relation to the supporter), it directly refers only to the professional secrecy of lawyers and attorneys-at-law. Therefore, it does not concern all promoters and supporters obliged to maintain legally protected professional secrecy under local regulations.
Furthermore, it was noted that the CJEU indicated, among others, that "it should be recognised that the right of Member States to replace the obligation to report with an obligation to notify was envisaged in Article 8ab(5) of Directive 2011/16/EU, as amended, only in relation to professionals who, like lawyers, are entitled, in accordance with national law, to represent parties before a court" (point 108 of judgment C-623/22).
Main theses of the general tax ruling
Zgodnie ze stanowiskiem MF, na gruncie przepisów działu III rozdziału 11a Ordynacji podatkowej, wyrok TSUE należy rozumieć w ten sposób, że doradcy podatkowemu (uprawnionemu do reprezentacji przed sądem w odniesieniu do spraw podatkowych) oraz rzecznikowi patentowemu (uprawnionemu do reprezentowania swoich klientów przed sądem w sprawach własności przemysłowej), na takich samych zasadach jak adwokatowi oraz radcy prawnemu przysługuje uprawnienie związane z prawnie chronioną tajemnicą zawodową, co oznacza “zastąpienie obowiązku raportowania schematu podatkowego do Szefa KAS obowiązkiem powiadomienia innych podmiotów o konieczności takiego zaraportowania”. To ostatnie może budzić pewne wątpliwości na gruncie obowiązków promotora w świetle powoływanych przez MF wyroków TSUE.
According to the Ministry of Finance, based on the provisions of section III, chapter 11a of the Tax Ordinance, the CJEU judgment should be understood in such a way that a tax advisor (authorized to represent clients before a court in relation to tax matters) and a patent attorney (authorized to represent clients before a court in intellectual property matters), on the same principles as a lawyer and an attorney-at-law, are entitled to the right to legally protected professional secrecy, which implies "replacing the obligation to report a tax scheme to the Head of the National Revenue Administration with the obligation to notify other entities of the requirement to fulfill such reporting obligation". The latter may raise certain doubts in terms of the promoter's obligations in the light of the CJEU judgments cited by the Ministry of Finance.
Due to the joint fulfillment of two criteria, i.e.:
- statutory obligation to maintain legally protected professional secrecy and
- statutory right to represent clients before a court,
in view of the Minister of Finance the promotors or supporters entitled to be exempted from the obligation to submit information on tax scheme to the Head of the National Revenue Administration, due to legally protected professional secrecy, on the grounds of Polish regulations, are:
- lawyer,
- attorney-at-law,
- tax advisor,
- patent attorney.
It should be emphasised that – in accordance to the general tax ruling - the above criteria are not met by professions such as notaries, auditors, accountants or bankers, as these professions do not have the right to represent clients before courts.
The above applies to tax schemes other than standardised tax schemes (so-called non-standardised tax schemes). In the case of standardised tax schemes, providing information on tax scheme does not constitute a breach of professional secrecy (in accordance with Article 86b § 7 point 2 and 86d § 5 of the Tax Ordinance).
The issuance of the general tax ruling was accompanied by a change of the tax explanations of the Minister of Finance of 31 January 2019 - Information on tax schemes (MDR) in the scope covered by the general tax ruling.
Should you have any questions with regard to the discussed regulations, we remain at your disposal.
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