What's new at DZP?
Landmark judgment in a case involving a refusal to issue a ruling due to suspected use of a tax avoidance clause
The Tax Practice has successfully advised in a case before the Voivodship Administrative Court (VAC) in Warsaw involving a refusal to issue an individual tax ruling due to the suspected use of a tax avoidance clause. The authority derived this suspicion from the fact that it was possible to apply a lower tax rate, without checking whether in the circumstances of the case the clause did not apply due to other circumstances. It also found that the opinion of the Minister of Development and Finance (opinions in this respect are currently issued by the Head of the National Revenue Administration), issued in a procedure where an application is made to the entitled authority for an opinion on the possibility of refusing to issue a tax ruling (art. 14b(5c) of the Tax Code) as regards elements of the facts or a future event regarding which there is a reasonable assumption that they could be the subject-matter of a decision issued with application of a tax avoidance clause, is binding, and there is no possibility of a decision in the case other than one compliant with this opinion.
This stance, prevailing in authority practice, was rejected by the VAC in Warsaw and in its judgment, it indicated that a refusal to issue a ruling must be determined by the existence of “reasonable assumption” of use of a tax avoidance clause. In the court’s view, “reasonable assumption” means one that is based on objective reasons supported by arguments, recitals or reasons resulting from the facts set out in the application. The VAC stressed that if the authority has insufficient data/information to check whether its assumption is reasonable, then it is obliged to call upon the party to supplement/give data enabling an assessment of the possibility of using a tax avoidance clause.
The VAC also stated that the above-said opinion of the Minister of Development and Finance (these opinions are currently issued by the Head of the National Revenue Administration) is not binding on the authority issuing the ruling or on the Court. This opinion does not therefore release the authority from making an independent assessment of whether there is reasonable assumption that a clause has been used and therefore refusing to issue a ruling.
From 25 May 2018 the General Data Protection Regulation (GDPR) applies in Poland and other European Union countries. We would therefore like to give you several details on the subject of how DZP processes personal data.
The administrator of the personal data is Domański Zakrzewski Palinka Sp.k. (“DZP”; address: Rondo ONZ 1, 00-124 Warszawa). Data are processed for contact purposes and to impart information on changes to provisions and authority practices and on other issues, including events concerning day-to-day legal, economic and cultural issues, inter alia, by sending DZP newsletters. The above is carried out on the basis of legitimate interests, i.e. in accordance with art. 6(1)(f) of the GDPR. Data can also be processed where necessary for the conclusion or performance of a contract and for compliance with a legal obligation to which DZP is subject, i.e. pursuant to art. 6(1)(b) and (c) of the GDPR. Data can be transferred to entities with whose help DZP achieves the indicated aims, including entities maintaining IT infrastructure. Giving data is voluntary and in contractual relations is a requirement for concluding and performing a contract. It is possible to object to data processing, request access to, rectification and erasure of personal data or restriction of processing and data portability. Data are kept until an objection is made, and in contractual relations – throughout the term of the contract and thereafter for a period specified in provisions on archiving and limitations period for claims. Anyone has the right to file a complaint with the President of the Personal Data Protection Office. Questions concerning privacy at DZP can be sent to DZP’s Data Protection Inspector, Macieja Maciejewskiego, at: email@example.com.
New rules on cookies: Domański Zakrzewski Palinka sp.k., as the service provider of the www.dzp.pl website, stores and accesses cookies, i.e. small text information fles sent by a web server and stored on your hard drive, or other data storage medium of a user, for the purposes of: proper functioning of the www.dzp.pl website, confguring the www.dzp.pl website, security and reliability of the www.dzp.pl website, session monitoring, providing advertisements, personalization of the displayed information to the user, or analysis, statistics, research and website trafc auditing.