TORUŃSKI ROCZNIK PODATKOWY

Agnieszka Olesińska
Is Polish GAAR Compatible with the Directive 2016/1164 (ATAD)? 

 

Summary

 

Poland has had a GAAR in force since 15 of July 2016. In substantive terms, the conditions for ignoring an arrangement (i.e. ignoring the effectiveness of a transaction or series of transactions) in Poland are similar to solutions that can be found in other countries’ GAARs, particularly when considering rules enacted in recent years. Recently an attempt at creating a normative model of GAAR has been undertaken by the European Union. A milestone in the unification of European standards for combating tax avoidance – including at the general level, i.e. through a general anti-avoidance rule – is the Council Directive laying down rules against tax avoidance practices that directly affect the functioning of the internal market 2016/1164 of 12 July 2016. The Directive establishes inter alia the obligation to introduce a GAAR to the tax systems of the Member States and provides for a model regulation. In accordance with Art. 11 of the Directive, Member States are obliged to apply the ATAD, including the EU GAAR, with effect from 1 January 2019. Thus, from the present-day perspective ATAD is the key normative model that should be used in comparisons with Polish legislation in effect. While it is true that such a rule is in effect in Poland, the question remains of whether it accurately reflects the model provided for by the Directive. It should be stated that the Polish rule essentially fulfils the requirements set out by the Directive. All the criteria provided for in Art. 119a GTA applied in defining tax avoidance are, in the Author’s view, aligned with the criteria set out in Art. 6 ATAD.
Certain doubts can arise as, according to Article 119b of the GTA, the Polish GAAR shall not apply if the tax benefit obtained or intended to be obtained by a taxpayer does not exceed PLN 100,000 (approx. 27,500 USD) during the settlement period, or in the case of taxes that are not settled periodically, if the tax advantage from the arrangement does not exceed PLN 100,000. It should be noted that ATAD does not provide for a minimum threshold below which a State would not be under an obligation to combat tax avoidance. However, we may probably assume that the threshold in the Polish legislation has been set at such a low level that we may consider the Polish legislator to have achieved the objective set by the Directive.
Article 6 of the ATAD holds that Member States may ignore an arrangement or series of arrangements if they have been put into place ‘for the main purpose or one of the main purposes’ to obtain a tax benefit defeating the object or purpose of the applicable tax law. The key phrase is ‘the main purpose or one of the main purposes’. Following in the footsteps of the Commission Recommendation 2012, the Polish legislator has declared in Art. 119a § 1 of the GTA that the GAAR is applicable when the taxpayer has acted ‘primarily’ in order to obtain a tax benefit (…)”. In Art. 119d GTA ‘primarily’ is defined entirely consistent with 4.6. of the Commission Recommendation 2012 but the question is, whether Art. 119a GTA is in line with Art. 6 ATAD as well. This issue is analysed more closely. In the Author’s opinion, the conclusion that the requirement as to the purpose of the arrangement as provided for by 119a § 1 GTA is incompatible with the Directive would be hasty and excessive.

 

References

 

1. Aramayo S.V., A Common GAAR to Protect the Harmonized Corporate Tax Base: More Chaos in the Labyrinth, No. 1, 25(1) EC Tax Review 2016.
2. Bergmann S., Tax Avoidance Revisited in the EU BEPS Context,P. Dourado (ed.), IBFD 2017.
3. Fornari, Unikanie opodatkowania i nadużycie prawa we włoskim prawie podatkowym, Kwartalnik Prawa Podatkowego No 3, 2014.
4. Dourado A.P. [in:] Tax Avoidance Revisited in the EU BEPS Context, Dourado A.P. (ed.), IBFD 2017.
5. Fennell D., Finance Act 2014 – New General Anti-Avoidance and Mandatory Reporting Rules: Part 2, Irish Tax Review, no. 1, 2015.
6. Filipczyk H., Olesińska A., GAARs – A Key Element of Tax Systems in the Post-BEPS World, IBFD 2016.
7. Folkvord B., Norway [in:] Tax Avoidance Revisited in the EU BEPS Context, Dourado A.P. (ed.), IBFD 2017.
8. Zizzo, Tax Avoidance Revisited in the EU BEPS Context, A.P. Dourado (ed.), IBFD 2017.
9. Haslehner W., Tax Avoidance Revisited in the EU BEPS Context, Dourado A.P. (ed.), IBFD 2017.
10. Hultqvist A. Tax Avoidance Revisited in the EU BEPS Context.Dourado, A.P. (ed.), IBFD 2017.
11. Immonen R.,   Lindgren J. Tax Avoidance Revisited in the EU BEPS Context, Dourado A.P. (ed.), IBFD 2017.
12. de Broe, Beckers D., The General Anti-Abuse Rule of the Anti-Tax Avoidance Directive: An Analysis Against the Wider Perspective of the European Court of Justice's Case Law on Abuse of EU Law' (2017) 26 EC Tax review, Issue 3, 2017.
13. Lopez J.M., Garcia E.G., Tax Avoidance Revisited in the EU BEPS Context, IBFD 2017.
14. Mączyński D., General Anti-Abuse Rule under Polish Tax Law [in:] Selected issues in taxation and tax authorities in central Europe, Smoleń P. (ed.), Wydawnictwo KUL Lublin 2016, p. 130;
15. Mirek I., Kwestia gospodarczego sposobu rozpatrywania prawa podatkowego i nadużycia możliwości kształtowania stosunków prawnych w prawie podatkowym Austrii oraz Szwajcarii i Niemiec, Kwartalnik Prawa Podatkowego 2004.
16. Navarro A., Paradda L., Schwarz P., The Proposal for an EU Anti-avoidance Directive: Some Preliminary Thoughts, no. 3, EC Tax Review 2016.
17. Olesińska A., Klauzula ogólna przeciwko unikaniu opodatkowania, Toruń 2013.
18. Olesińska A., Zalasiński A. Anti-avoidance measures of general nature and scope – GAAR and other rules, cahiers de Droit Fiscal, vol. 103, IFA Seoul Congress 2018.
19. The history of the first Polish GAAR was presented by Brzeziński B., Lasiński-Sulecki K. [in:] A Comparative Look at Regulation of Corporate Tax Avoidance (Brown K.B. ed.), Springer 2012.
20. Reimer E., Germany [in:] Tax Avoidance Revisited in the EU BEPS Context, Dourado A.P. (ed.), IBFD 2017.
21. Theocharopoulou E., Tax Avoidance Revisited in the EU BEPS Context, Dourado A.P. (ed.), IBFD 2017.
    
    Key words:  tax law, tax,  general anti-avoidance rule, GAAR, ATAD