Repeal of the state of epidemic emergency - impact on transfer pricing obligations

Since the lifting of the state of emergency in Poland, many regulations and procedures related to transfer pricing have taken on a new dimension. In a previous alert dated 20 June, our experts discussed in detail the impact of this event on businesses and their rights and obligations >> link.

In this Tax Alert, we focus on the most important changes in transfer pricing documentation. The new guidelines introduce shorter documentation deadlines and new rules for signing the TP statement in the context of the TPR form. It is worth understanding how these changes will affect documentation processes and the implications for modern businesses.

1. Shorter deadlines and new guidelines for transfer pricing documentation

Shorter deadlines for documentation compiling (local and master files) and for filing transfer pricing information and statement (which has been an integral part of the TPR since last year)

During the state of epidemic and epidemic emergency, the COVID Law extended the deadlines for fulfilling transfer pricing documentation and reporting obligations until the end of December (if the tax year matched the calendar year).

This year, under the COVID Law:

• local file must be prepared by the end of October,
• the TPR form (which includes the statement) must be filed by the end of November,
• master file must be submitted by the end of December.

2. Transfer pricing adjustment statement exemption: new guidelines and restrictions

Taxpayers making transfer pricing adjustments are not exempt from the obligation to hold a statement that confirms that a related party made the adjustment in the same amount as the taxpayer.

Having said that, the exemption from the obligation to hold a transfer pricing adjustment statement applies in two cases: if the adjustment (i) was made when a state of epidemic emergency or a state of epidemic declared in connection with COVID-19 was in effect throughout Poland or (ii) is made for a tax year when such a state was in effect.

The Ministry of Finance has explicitly confirmed in its announcement that this preferential treatment can still be applied by taxpayers when preparing transfer pricing documentation for 2022-2023. This will no longer be possible for future years.

Nevertheless, starting 1 January 2022, the related party’s statement can be replaced by an accounting evidence.

3. Restrictions on Local Documentation Exemption vs. Tax Losses – Current Framework and Exceptions

No exemption from the obligation to prepare local file in the event of a tax loss and a decrease in revenue

Under regulations effective as of 1 January 2019, an exemption from the obligation to prepare transfer pricing documentation is available for transactions between related parties that (i) have not incurred a tax loss in a given tax year and (ii) have not benefited from certain income tax exemptions.

In addition, the Covid Law provided for a convenience whereby the exemption was available even if one of the entities incurred a loss. Timing criterion was the restriction (the duration of the epidemic or epidemiological threat) and a revenue pre-condition was in place: the entity associated with the loss was to have total revenues in a given year that were at least 50% lower than the total revenues generated in the corresponding period immediately preceding that year.

However, according to the above-mentioned announcement from the Ministry of Finance, this facilitation is still available for 2022 and 2023 (where the fiscal year is the same as the calendar year). The cancellation of the epidemic emergency during 2023 did not affect the taxpayer’s right to benefit from it for either 2022 or 2023.

4. Changes in the procedure for signing the TP declaration and their impact on taxpayers

Non-applicability of the exemption narrowing the circle of individuals authorized to sign the TP statement will not make much difference to taxpayers.

This is because completely new regulations apply in this regard.

As of 1 January 2022, the statement on the preparation of transfer pricing documentation and on the arm’s length transaction is part of the TPR information (and is used for transfer pricing documentation for 2022 and for subsequent tax years). Thus, filing the form with the authorities will be equivalent to making such a statement. In turn, the TPR itself must be signed by an individual who acts as the head of an entity (a member of the board or other governing body) or by an attorney – a lawyer, a legal counsel, a tax advisor or a statutory auditor.

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Please do not hesitate to contact us if you have not yet complied with your transfer pricing documentation obligations. We will be happy to relieve you of this burden.

This Tax Alert does not constitute legal or tax advice. MDDP Michalik Dłuska Dziedzic i Partnerzy spółka doradztwa podatkowego spółka akcyjna is not liable for the use of the information contained herein.