Changes in transfer pricing as of 1 January 2022

Among the numerous legislative changes, starting from 1 January 2022 transfer pricing regulations have also been amended and change formal and documentation obligations.

The major changes include:

Changes to formal obligations:

• TP-R Form – the taxpayer will be required to submit the TP-R form to the Head of the Tax Office competent for the taxpayer (and not, as before, to the Head of National Revenue Administration).
• Statement on preparation of transfer pricing documentation and on arm’s length nature of prices – will be combined with the TP-R form (it used to be a separate document beforehand).
• Abolished obligation to submit the ORD-U form for taxpayers/companies which are not legal entities, which are obliged to submit the TP-R and do not perform the so-called “tax-haven transactions”.
• Extended reporting and documentation deadlines:
• preparation of local transfer pricing documentation – by the end of the 10th month following the end of the entity’s tax year,
• submission of TP-R transfer pricing information – by the end of the 11th month following the end of the entity’s tax year,
• submission of local TP documentation by the taxpayer at the request of the tax authority – 14 days.
• Clarified manner of determining the value of a controlled transaction:
• in the case of a deposit (which also includes bank deposits) – the transaction value refers to the equity value,
• in the case of non-corporate entities- the transaction value refers to the total value of contributions made to the non-corporate entities.

Changes in the scope of documentation obligations:

• Extended catalogue of exemptions from the obligation to prepare local transfer pricing documentation for:
• transactions between foreign permanent establishments located in Poland with related entities as parent companies thereof,
• transactions between a non-resident related entity located in Poland and a related entity that has tax residency in Poland,
• controlled transactions covered by a tax agreement and an investment agreement,
• controlled transactions covered by the safe harbour mechanism for loans, credits, bonds,
• transactions concerning settlements with regard to the so-called net reinvoicing (provided that certain conditions are met).
• Introduced possibility of waiving the preparation of benchmarking/compliance analysis for:
• controlled transactions concluded by taxpayers that are micro or small entrepreneurs (possibility to apply for the tax year beginning in 2021),
• transactions other than controlled transactions concluded with so-called tax havens (direct transactions) or in which the beneficial owner of the counterparty is a resident of so-called tax havens (indirect transactions), covered by the documentation obligation (possibility of application for the tax year beginning in 2021).

Other changes:

• Clarified moment for which a loan (facility, bond) agreement should comply with the conditions of the safe harbour mechanism with respect to interest rates – the terms and conditions should be met each time a loan agreement is amended.
• Transfer pricing adjustments:
• allowed possibility to apply an adjustment when the taxpayer has received an accounting evidence from a related party that confirms the TP adjustment,
• lack of obligation to inform about the TP adjustment in the annual return – one of the formal conditions for the effective making of such an adjustment repealed.
• Added statutory definition of a tax agreement and an investment agreement within the meaning of the Tax Code.
• Changed reference period from a financial year to a tax year in transfer pricing regulations.
• Clarified documentation obligation for companies forming a tax capital group.

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If you are interested in obtaining further information, or would like to discuss the impact of the above changes please contact:

Magdalena Marciniak	Magdalena.Marciniak@mddp.pl	+ 48 665 746 360
Magdalena Dymkowska	Magdalena.Dymkowska@mddp.pl	+ 48 501 108 261
Agnieszka Krzyżaniak	Agnieszka.Krzyżaniak@mddp.pl	+ 48 692 558 020

or your advisor at MDDP.