Extension of the state of epidemic threat until 31.10.2022 – results in the obligation to report non-cross-border tax schemes (MDR) for the last few years by the deadline of 30.11.2022

In the current legal status – in the case of tax schemes (MDR), other than cross-border, from 31.03.2020, the deadlines for reporting to the Head of the National Tax Administration remain suspended until the 30th day following the date of cancellation of the state of epidemic threat and the state of epidemic announced in connection with COVID-19.

Therefore, the following national tax schemes are subject to reporting suspension:

• MDR-1 – information on tax schemes,
• MDR-2 – notification about the tax scheme,
• MDR-3 – information of the beneficiary on the application of the tax scheme,
• MDR-4 – quarterly information on the availability of a standardized tax scheme.

What is important - by the Regulation of the Council of Ministers (published on 29.09.2022)  the state of epidemic threat has been extended until 31.10.2022. Thus, in the absence of another extension - promoters, supporters and beneficiaries will be obliged to report all identified national tax schemes (MDR) by the deadline of 30.11.2022.

Entities obliged to provide information and notifications under the MDR regulations may or may not benefit from the suspension of deadlines, as a consequence it is crucial to verify this area in the activities of each entity.

Taxpayers who have used the suspension institution and have not submitted information/notifications to the Head of the National Tax Administration should start an analysis of activities/events/transactions that have been planned and/or carried out in terms of verifying whether the qualified beneficiary criterion and the criteria of hallmarks qualifying a given arrangement for reporting national MDR have been met.

Bearing in mind the ambiguity of regulations in the area of MDR as well as the lack of uniform practice - in fact, the identification of arrangements as tax schemes subject to transfer to the Head of the National Tax Administration, compliance with deadlines and other obligations resulting from the MDR regulation may be extremely burdensome for entities, which is why PKF experts provide comprehensive support in this area.

The procedure related to the analysis in the field of identification of obligations in the area of tax schemes boils down, among others, to:

• separation of activities/events/transactions subject to MDR risk;
• exercising due diligence by carrying out analyses:

• identification of the role played by the company and other participants
  in the arrangement (promoter, facilitator, beneficiary);
• review of the main benefit criterion and verification of hallmarks;
• completing and archiving documentation;

• filling in and submitting to the Head of National Tax Administration forms MDR-1, MDR-2, MDR-3, MDR-4.

It should be emphasized that violations of obligations related to reporting tax schemes to the Head of the National Tax Administration are threatened with sanctions under the Fiscal Penal Code, i.e. fines imposed on natural persons, which in 2022 may amount to a maximum of about 28.9 million PLN.

We recommend starting work to identify domestic tax schemes for the period in which the suspension was in force and conducting an analysis in your Companies in terms of obligations related to reporting tax schemes, both in the current period and for previous years.

Legal basis:

Article 31y of the Covid Act (of 02.03.2020 on special solutions related to the prevention, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them).

Downloads

• PKF Alert - Extension of the state of epidemic threat until 31.10.2022 – results in the obligation to report non-cross-border tax schemes (MDR) for the last few years by the deadline of 30.11.2022.pdf [PDF]