In principle, entities that prepare and submit TPR information do not have to submit ORD-U declarations.
There is an exception to this rule – it applies to taxpayers who make transactions with “tax heaven” entities (Article 11k sec. 2a of the Polish CIT Act).
This results from the regulation of Article 82 § 1c of the Polish Tax Ordinance: “The provisions of § 1 point 2 (i.e. submitting the ORD-U declaration – ULVE note) do not apply to the entities referred to in § 1, obliged to prepare information on transfer pricing, pursuant to the provisions of Article 23zf sec. 1 of the Act of 26 July 1991 on personal income tax and art. 11t sec. 1 of the Act of 15 February 1992 on corporate income tax (TPR information – ULVE note).
The exclusion referred to in the first sentence does not apply to taxpayers and companies that are not legal persons referred to in art. 23w sec. 2a of the Act of 26 July 1991 on personal income tax and in Article 11k sec. 2a of the Act of February 15, 1992 on corporate income tax.”
However, does this apply only to transactions that trigger the obligation to prepare TP documentation?
According to the author, the reference to Article 11k sec. 2a of the CIT Act applies only to transactions that trigger the obligation to prepare TP documentation, i.e. exceeding the thresholds indicated therein:
- PLN 2,500,000 – in the case of a financial transaction;
- PLN 500,000 – in the case of a transaction other than a financial transaction.
Therefore, if the transaction does not exceed the above-mentioned thresholds, the author believes that there is no obligation to submit an ORD-U declaration.
The list of countries and territories applying harmful tax competition is published in the regulations of the Minister of Finance, issued pursuant to Art. 11j sec. 2 of the Polish CIT Act and Art. 23v sec. 2 of the Polish PIT Act.
Currently, in the field of CIT, it is the Regulation of the Minister of Finance of March 28, 2019 on determining countries and territories applying harmful tax competition in the field of corporate income tax (Journal of Laws of 2019, item 600). We will find there e.g. Andorra, British Virgin Islands, Hong Kong, Monaco and Panama.
It is worth mentioning that the Ministry of Finance changed the regulation on tax information so that ORD-U should be submitted by the end of November (instead of the end of March). This already applies to reporting for 2022.