Are transactions between spouses subject to transfer pricing obligations?

On July 3, 2023, a parliamentary interpellation was submitted to the Minister of Finance regarding the obligation of spouses entering into business transactions between themselves to prepare transfer pricing documentation.

The authors of the interpellation pointed out that according to the CIT Act and the PIT Act, transfer pricing documentation and reporting obligations also apply to spouses. The authors expressed the opinion that despite the lack of a legal basis, the practice of exempting spouses from TP obligations by National Tax Administration officials is also encountered.

The parliamentary intervention included three examples of individual interpretations by the director of the National Tax Chamber, which analyzed the issue of the impact of family ties on transfer pricing documentation and reporting obligations (however, none of the interpretations presented provided support for the authors’ thesis that spouses are exempt from TP obligations).

The following questions are included in the interpellation to the Minister of Finance:

1. Has the problem in question been recognized in the work of the Ministry of Finance?
2. Is the ministry considering working on abolishing the requirement for spouses entering into business transactions between themselves to prepare transfer pricing documentation?

The position of the Ministry of Finance

In its response to the interpellation, the Ministry confirmed that it is aware of the potential existence of TP obligations for individuals, including those who are married to each other, as a direct result of the current legislation.

In the Ministry’s view, the current provisions of the PIT Act significantly limit the group of taxpayers who may be subject to documentation (obligation to prepare local transfer pricing documentation) and reporting (obligation to file transfer pricing information TPR) obligations. According to the Ministry, instances of the existence of such obligations for individuals in Poland are not excessive.

The aforementioned factors limiting potential TP obligations for individuals are primarily the documentation thresholds set forth in the PIT Act, which are at a level analogous to the thresholds provided for legal entities, and the possibility of benefiting from an exemption from the documentation requirement for transactions entered into by entities domiciled in the Republic of Poland (assuming that additional criteria set forth in the PIT Act are met).

In its response, the Ministry also stressed that it has not encountered cases of National Tax Administration providing information that is inconsistent with the current state of the law regarding the obligation of spouses to fulfill TP obligations, and noted that the facts of the interpretations presented by the authors of the interpellation relate to controlled transactions carried out, although by spouses, within the framework of their individual business activities.

The ministry has stated that it is not currently working to reduce TP obligations for spouses, nor does it plan to make legislative changes of this nature in the future.

Transfer pricing obligations for spouses

In its response, the Ministry unequivocally confirmed that business transactions carried out between spouses and exceeding the thresholds indicated in the PIT Act are controlled transactions and will be subject to TP obligations, the fulfillment of which is incumbent on the individuals carrying out these transactions.

TP obligations for individuals, therefore, are determined based on thresholds analogous to those provided for legal entities, and are respectively:

1. PLN 10,000,000 for a commodity transaction;
2. PLN 10,000,000 for a financial transaction;
3. PLN 2,000,000 for a service transaction;
4. PLN 2,000,000 for a transaction other than those specified in points 1-3.

Individuals entitled to benefit from the exemption from the obligation to prepare documentation, as mentioned by the Ministry in its response to the interpellation, will still be required to prepare and submit to their respective tax office transfer pricing information, in which they will present basic data on transactions that are subject to TP obligations but benefit from the exemption from documentation.

The impact of links between individuals on the obligations of legal entities

In the context of the aforementioned TP obligations for transactions between individuals, it is also worth recalling the significant impact of links between individuals on the emergence of links between legal entities with which these individuals are associated.

The fact that individuals have entered into marriage, can have a significant impact on the emergence of new links between business entities. With the emergence of a link between individuals (spouses), the scope of links of business entities with which each spouse is connected through so-called management links (a case in which an individual performs significant management functions in a business entity that meets the criterion of exercising significant influence, as defined by the Legislature) or through property links (an individual holds directly or indirectly at least 25% of the shares or rights to shares in the profits or assets of a business entity) will expand.

The occurrence of the above ties may result in new TP obligations for both individuals and legal entities (e.g., as a result of an individual granting a loan to a company in which the lender’s spouse has the sole management function, or purchasing real estate from such a company).

Summary

Individuals are subject to TP obligations no less than legal entities.
Due to the relatively high documentation thresholds introduced by the Legislature, the scale of TP obligations for individuals is, of course, significantly smaller than the scale of TP obligations occurring for legal entities. However, TP obligations for individuals should not be underestimated, if only because of the severe sanctions provided for taxpayers for failure to comply with the obligations.

Under the current provisions of the Penal Fiscal Code, sanctions for individuals are analogous to those for legal entities. A taxpayer currently faces a fine of up to 720 daily rates for failing to fulfill the obligation related to preparing transfer pricing documentation or filing a TPR report. On the other hand, fulfilling the obligations after the deadline carries a fine of up to 240 daily rates.

The subject of personal ties itself is undoubtedly complicated and causes many difficulties for taxpayers. Therefore, each case requires a detailed analysis and individual approach.