New draft amendment to the regulation postponing WHT collection

On 23 April 2020, on the pages of the Government Legislation Centre a draft regulation of the Minister of Finance amending the regulation on the exclusion or limitation of the application of Article 26, paragraph 2e of the Corporate Income Tax Act was published. The draft provides for another, already fourth postponement of the entry into force of the new withholding tax collection mechanism, this time to 31 December 2020.

In case, if the amount paid out in favor of the same taxpayer (i.e. the same foreign company) exceeds the amount of PLN 2,000,000.00 during the tax year, the tax remitter will in principle be obliged in the first place, in relation to the surplus above PLN 2,000,000.00 to collect the withholding tax without applying an exemption under the non-preferential Polish tax rate (19% or 20%) and pay it to the Polish tax office. Only after the tax authorities have checked whether the conditions for exemption from the withholding tax or for the application of a preferential tax rate have been met, the collected withholding tax may be refunded.

The postponement of the date of entry into force of the new withholding tax collection mechanism was justified by the announcement of an epidemic on the territory of the Republic of Poland in connection with the SARS-CoV-2 virus infection and the need to limit the obligations related to withholding tax collection for entrepreneurs, as well as the need to ensure proper efficiency on the part of the tax administration. Due to the lack of possibility to precisely determine the date of cancelling the state of the epidemic and mitigating the effects of this state for entrepreneurs, it was proposed to postpone the entry into force of new rules on withholding tax collection until 31 December 2020.

In addition, it should be pointed out that the published draft remains essentially unaffected by the scope of application of regulations other than Article 26 paragraph 2e of the of the Corporate Income Tax Act e.g. the obligation to exercise due diligence when verifying the conditions for applying a lower rate or qualification of the recipient of the debt as the actual recipient.

Authors: Łukasz Dachowski, Partner Poznań, General Manager of the law firm in Poznań, attorney at law and tax consultant in Poland, LL.M.; Magdalena Stefaniak – Odziemska, tax consultant