May 4, 2023
Poland to lift COVID-19 suspension for MDR deadlines by end of June 2023
The Polish Ministry of Health recently announced that it expects COVID-19 epidemic emergency status will be cancelled on 30 June 2023, which will affect the current suspension of reporting deadlines for mandatory disclosure rules (MDR) for certain tax arrangements.
The planned lifting of the epidemic emergency status means that the suspension of MDR reporting deadlines will end 30 days from the point when the epidemic emergency is lifted (i.e., end of July 2023). The time to prepare for reporting will, therefore, be relatively short.
Background — Polish MDR provisions
The Polish MDR regulations implement the European Union (EU) Directive 2018/822 of 25 May 2018 on the mandatory disclosure and automatic exchange of cross-border tax arrangements (the Directive or DAC6) and impose additional reporting requirements.
The Polish provisions go beyond the minimum standard set forth in the Directive and recognize two types of tax arrangements: (i) arrangements covered by DAC6 and (ii) arrangements not covered by DAC6 but still reportable under Polish domestic regulations.
Additionally, in a departure from DAC6 (which does not impose the MDR filing obligation on intermediaries with no EU nexus) the Polish MDR regulations are extraterritorial and extend the reporting obligation to intermediaries and taxpayers in any location (i.e., the Polish MDR reporting obligation is extended beyond Poland and the EU).
Based on the current regulations, the MDR deadlines for arrangements not covered by DAC6 do not start, and if commenced are suspended, between 31 March 2020 and the 30th day following the cancellation date of the epidemic emergency status and the epidemic status announced in connection with COVID-19.1
Impact of planned lifting of country's COVID-19 epidemic emergency status
The planned lifting of the epidemic emergency status due to COVID-19 should, in turn, lift the suspension on MDR deadlines for non-DAC6 tax arrangements. Depending on the case, the unsuspended deadlines may fall at end of July or in August 2023. Given that the suspension of MDR deadlines has been in effect for more than three years, the planned lifting of the epidemic emergency status at the end of June 2023 could leave a relatively short time to properly identify and fulfill MDR obligations related to the suspension period.
Based on publicly available statistics, most tax arrangements reported in Poland are non-DAC6 tax arrangements; therefore, the planned end of the suspension may be significant for taxpayers and intermediaries (EU and non-EU) who have not reported tax arrangements on an ongoing basis due to the suspension.
The lifting of the suspension will also affect taxpayers that did not file periodic MDR-3 reports (i.e., additional reports required if the taxpayer participated in a reportable non-DAC6 tax arrangement in a given reporting period or derived a tax advantage from that arrangement) on an ongoing basis during the suspension period.
Failure to comply with reporting obligations or delayed reporting may trigger substantial monetary penalties up to PLN 33,503,000 (i.e., €7.2m) on individuals and additional sanctions on entities. If a taxpayer is convicted of fiscal offenses related to not complying with the reporting obligations, the court may also prohibit conducting certain business activities.
All entities that could be obligated to file MDR reports in Poland should now review their transactions/arrangements (for at least the last three years) to determine the scope of these obligations in Poland and be ready to report in July/August 2023.
For additional information with respect to this Alert, please contact the following:
EY Doradztwo Podatkowe Krupa sp.k., Warsaw
Ernst & Young LLP (United States), Polish Tax Desk, New York
Published by NTD’s Tax Technical Knowledge Services group; Carolyn Wright, legal editor
1 For more information, see EY Global Tax Alert, Poland defers MDR deadlines for cross-border and other tax arrangements, dated 9 July 2020.