The development of digital reality makes it increasingly common for Polish VAT taxpayers to acquire rights to webinars or other materials of a similar nature prepared abroad. This applies to acquisitions from taxpayers based in countries other than Poland – whether located in the EU or outside the EU.
What is involved here is a “finished” recording, without the possibility of interaction by future recipients.
Here we should consider several possible legal qualifications:
- recognition of services as admission services (for training);
- recognition of services as electronic services;
- recognition of services as not falling into any special category, so those for which the place of supply is determined by general rules.
It follows from Article 28g sec. 1 of the Polish VAT Act that the place of supply of admission services to, among others, training courses is the place where the service actually takes place. However, admission to training courses can only be referred to in the case of stationary training courses. In the case of a purchased webinar (online training), admission (i.e. physical entry to the place where the training is held) does not occur. Hence, in the author’s opinion, this provision will not apply here.
Further, the Polish VAT Act provides for a specific settlement system for electronic services (residence of the service provider – Article 28k and Article 2 point 26 of the Polish VAT Act).
Electronic services are services provided electronically, as referred to in Article 7 of Regulation (EU) 282/2011 – services provided via the Internet or an electronic network, the provision of which – due to their nature – is essentially automated and requires minimal human involvement, and it is impossible to perform them without the use of information technology – such as:
- accessing and downloading videos or
- automated distance learning, the operation of which requires the use of the Internet or a similar electronic network, requiring little or no human participation, including virtual classrooms, except where the Internet or a similar electronic network is used as a simple tool for teacher-student communication.
At the same time, electronic services do not include, among others: services provided by professionals, such as lawyers and financial advisors, who provide advice to their clients via e-mail, or educational services in which the content of a course is transmitted by a teacher via the Internet or an electronic network (i.e., via a remote connection).
Again, the author believes that these services will not be electronic services (within the meaning of the regulations cited above).
For here we are dealing with a service, the main component of which is the preparation of the lecture, and its recording and transmission in electronic form is secondary and servile. In doing so, the lecturer does not provide directly to the target audience, but to the purchaser of the rights to the webinar – his provision is more akin to legal advice provided over the Internet (not considered an electronic service).
This is confirmed by some individual interpretations, which indicate that online training services will be electronic services if they boil down to the transmission of a recorded lecture or webinar with minimal human participation – as confirmed, for example, by the individual interpretation of the Director of National Tax Information dated 24th August 2020. (file reference number 0114-KDIP1-2.4012.195.2020.2.KST).
Accordingly, in the author’s opinion, the place of supply of services to taxpayers of the purchased webinar is determined on the basis of Article 28b sec. of Polish VAT Act – this provision stipulates that the place of supply of services in the case of supply of services to a taxpayer is the place where the taxpayer who is the recipient of the services has its seat of business activity (here: Poland).
The above, is confirmed, for example, by the Individual Interpretation of the Director of National Tax Information dated 3rd June 2022 (file reference number 0111-KDIB3-3.4012.73.2022.4.MS).
Thus, pursuant to Article 17 sec. 1 point 4 of the Polish VAT Act, the provision of services for the performance of which the taxpayer is the recipient of the services constitutes an import of services within the meaning of Article 2 point 9 of the Polish VAT Act. In such a case, under Article 17 sec. 2 of the Polish VAT Act, the service provider does not account for output tax.
At the same time, it should be emphasized that the import of services occurs regardless of whether the services are purchased from a taxpayer from an EU country or from a third country. However, in the case of importation of services, if the services are purchased from a contractor from an EU country, the taxpayer is required to register for EU VAT. In contrast, when the service is purchased from a non-EU company, there is no need to do so.