The Ministry of Finance published, yesterday and today, 4 new general ruling concerning: changes in the scope of the leasing contract and sale of the subject during its term, settlements when using fuel cards, sale of own receivables in factoring, and taxation of vocational training.
Changing the lease agreement, selling leased items
The Minister of Finance emphasizes that in a situation where the parties decide to change the provisions of the lease agreement, it is necessary to examine whether the new terms of the agreement meet the criteria resulting from tax regulation. If these changes do not violate the conditions for recognizing a given contract as a given type of lease, then they do not affect its tax qualification, in particular with regard to the application of the provisions on determining income and costs in the sale transaction to the user of the subject of the lease agreement after its termination.
Importantly, the Minister of Finance directly emphasizes that this also applies to changes related to the payment schedule (such as reducing or suspending installments).
It is also indicated that it is unacceptable to change the terms of the contract in such a way that it would transform a lease of one type into another.
The authority also agrees with the approach according to which the change of the party’s contract during the lease (e.g. as a result of an assignment) allows its settlement to continue, even if there is a change in other provisions of the contract (as indicated above) – again, as long as these changes do not violate the conditions recognizing a given contract as a given type of leasing.
Finally, it is pointed out that in the event that the leasing subject is sold by the financing party during the term of the contract to an entity other than the user, the financing party should recognize the revenue in the value expressed in the price specified in the contract, provided that if the price is at the level of the capital not paid by the user, it should be assumed to be in line with the market value.
Sale of own receivables in factoring agreement
The interpretation applies to a situation in which the taxpayer (creditor) assigns (including sale) to another entity (factor) his own debt, in connection with which the taxpayer has shown income due on the basis of art. 12 sec. 3 of the CIT Act.
So far, this issue has been the subject of inconsistent practice on the part of tax authorities, especially in the field of issued individual interpretations.
The Minister of Finance presents an approach according to which:
- sale of own debt to the factor for 100% of its gross nominal value entitles to settle the whole value of the sold gross debt in tax costs;
- sale of own debt to the factor below its gross nominal value (therefore disposal with loss), the method of settlement depends on the relation of loss to debt. If the loss is higher than the income, the surplus should be deducted from tax costs, and if the loss is lower than or equal to this income, the above-mentioned the value is a tax deductible in its entirety.
It is also indicated that: this approach should also be applied if the total gross receivable value is ceded to two factors (separately the net amount and the VAT equivalent), the factor’s remuneration is a tax-deductible cost.
Settlements when using fuel cards
The interpretation concerns the situation of using cards in a “triangular” model. It is the position of the ministry, in connection with the judgment of the Court of Justice of the EU in the case C-235/18 Vega International.
The interpretation concerns the model in which:
- one of the entities (e.g. the lessor) makes available (hands over) to the contractor fuel cards which it is not an issue;
- the other entity – the contractor (e.g. the lessee) by means of the above-mentioned cards purchase goods from
- a third entity – suppliers running a petrol station.
The Ministry explains that the transaction of providing fuel cards may be classified as the provision of services if the following conditions are jointly met:
- the recipient (card holder) purchased fuel directly from suppliers operating petrol stations;
- only the recipient decided about the ways of purchasing fuel, the quantity and quality of fuel, the time of purchase and the method of fuel use;
- the recipient bears all costs related to the purchase of fuel;
- the role of an intermediary was limited to providing the recipient with a financial instrument enabling the purchase of goods.
At the same time, the ministry emphasizes that due to the change in the provisions of the Polish VAT Act from 2021 (repealing Article 7 sec. 8 of the Polish VAT Act), individual interpretations issued in the scope of this regulation lose their protective power.
Participation in vocational training
The interpretation clarifies that the provision of free trainings by the professional organizations (as Bar) to its members do not constitute income for them within the meaning of the PIT Act.