Intangible Services Costs in 2022 – the Changes Brought by the Entry into Force of the Polish Deal

The tax law prepared as part of the Polish Deal government scheme, among the numerous tax changes that are to enter into force at the beginning of 2022, provides for, i.a., the repeal of Art. 15e of the CIT Act. It might seem that this legislative amendment means that the currently applicable limit on the costs of intangible services purchased from related entities will no longer be a problem for taxpayers. Nothing could be further from the truth. In practice, it turns out that the aforementioned scheme will result in more stringent regulations affecting some of them.

CHANGE OF THE CURRENT LEGAL SITUATION

In the current legal situation, when a certain limit is exceeded, taxpayers are obliged to exclude from tax-deductible costs some categories of costs incurred for the benefit of related entities or entities based in the so-called tax havens. These include the costs of consulting services, advertising services, market research, management and control, insurance, guarantees and sureties, data processing and performances of a similar nature.

The most problematic in the entire catalogue is the definition of performances of a similar nature. The issue of classifying particular services as being of a similar nature to those listed in Art. 15e is, in principle, an individual matter and depends mainly on the specificity and nature of a particular taxpayer. Not infrequently, services referred to in a contract in the same way may be performances of a completely different nature. To date, this has resulted in numerous interpretation disputes that were ultimately dealt with by administrative courts.

The value of services that taxpayers can recognise as tax-deductible costs is calculated on the basis of the amount by which these costs exceed the total of PLN 3 million and 5% of tax-EBITDA.

Unfortunately, the abovementioned legislative changes should be considered in a broader light. In lieu of the repealed Art. 15e, providing for the limitation of intangible services costs, the legislature has introduced, among others, the following:

• the minimum tax (Art. 24ca),
• tax on shifted income (Art. 24aa),
• complete exclusion from tax-deductible costs of the so-called hidden dividends (Article 16(1)(15b)).

THE MINIMUM TAX

The first of the new regulations that will affect the rules of accounting for the intangible services mentioned above is the so-called minimum tax. To calculate the tax base, one has to take into account the same costs of intangible services as those covered by Art. 15e, incurred for the benefit of related entities. The minimum tax will be determined at 10% of the tax base, which is the sum of:

• 4% of the value of revenue from sources other than capital gains,
• debt financing above 30% of tax-EBITDA,
• deferred income tax related to the disclosure of certain intangible fixed assets,
• the costs of acquiring specific tangible services and rights incurred for the benefit of related entities (the catalogue is defined in a similar way to the current Article 15e) exceeding the overall value of 5% of tax-EBITDA plus PLN 3 million.

The minimum tax paid for a given year may be deducted from the CIT calculated according to the general principles. However, it is worth noting that the minimum tax will be levied on entities that recognise a loss on operating activities or whose income from the operating profits category exceeds 1%.

TAX ON SHIFTED INCOME

Another regulation provides for the imposition of tax on entities resident in Poland in relation to the so-called shifting of income. The rate of this tax is likely to be 19%, and ‘shifted income’ will include the costs incurred directly or indirectly for the benefit of a related entity of the taxpayer.

Pursuant to Art. 24aa, the catalogue of costs covered by the new regulation includes costs similar in their scope and definition to those covered by the currently applicable Art. 15e, including, but not limited to, costs of intangible services and fees for intangible fixed assets. In addition, it should be noted that the tax on shifted income may be reduced, for example, by the withholding tax deducted from such intangible services and fees.

EXCLUSION OF THE SO-CALLED HIDDEN DIVIDENDS FROM TAX-DEDUCTIBLE COSTS

In the current bill, the category of costs excluded from tax-deductible costs has been extended to artificial costs that constitute the so-called hidden dividend (the draft Art. 16(1)(15b) of the CIT Act). The proposed catalogue of costs does not literally refer to expenditure on intangible services. It should be mentioned, however, that if a taxpayer pays to related entities remuneration covering the abovementioned intangible services or fees and payments for the use of, or the right to use, intangible fixed assets, and the amount of this remuneration depends on the profit earned by the entity, the expenditure incurred may be treated as the so-called hidden dividend. As a result, this expenditure will automatically be completely excluded from the entity’s tax-deductible costs.

To summarise, the changes planned as part of the Polish Deal will be very broad and will extend to a number of areas. It should be noted that while the repeal of Art. 15e could be considered a positive and expected change, the other accompanying regulations will be a rather less favourable modification. The consequence of the proposed legislative changes may be that entities which had previously obtained individual tax rulings or APA [1] in respect of Art. 15e of the CIT Act will not be shielded from the adverse consequences of the new regulations. As a result, companies and partnerships will be obliged to pay tax on excessive costs of intangible services rendered by related entities.

However, under the interim provisions, the taxpayers who acquired the right to deduct costs pursuant to Art. 15e by the end of 2021 shall retain the right to this deduction from 1 January 2022 on the terms defined in this provision.

Author: Wioletta Młynarz, Accountant at MDDP Outsourcing.

---

[1] APA – an agreement on transaction prices, which constitutes an important safeguard for taxpayers. It is aimed to protect taxpayers in respect of transactions concluded with related entities by eliminating the possibility of tax authorities questioning the pricing terms specified for such transactions.