The obligation to introduce the Mandatory
Disclosure Rules (MDR) results from Council Directive (EU) 2018/822 of 25 May 2018
(“Directive”). The Act introducing the obligation to
report tax schemes (“Act”) has been in force since
1 January 2019 and, as such, has applied to tax
schemes for which one of the events giving rise to
the obligation to provide information occurred on
that day or later. The objective scope of the Polish
regulations is broader as it concerns not only cross-
border schemes (as in the case of the Directive) but
also domestic schemes. The Act also introduces
transitional provisions. A cross-border tax scheme is
subject to reporting if the first activity related to
its implementation was carried out prior to the
effective date of the Act, but not earlier than after
25 June 2018. Other tax schemes are subject to
reporting if the first activity was carried out not
earlier than after 1 November 2018.
Pursuant to the Act, a tax scheme is an
arrangement having the hallmarks specified in the
Act. A tax scheme is not tantamount to
circumvention of tax law or tax optimisation. In
addition, it applies to all taxes, including VAT. To a
large extent, a tax solution including a tax
advantage will result to be a tax scheme; however,
this concept may also encompass other situations
listed in the Act, including those related to asset
transfers or non-transparent ownership structure.
The disclosure obligation arises where the
arrangement concerned meets the conditions
specified in the tax scheme definition, and for
schemes other than cross-border schemes, the
criterion of the eligible beneficiary must also be
met. In the latter case, the disclosure obligation
will not arise until one of the thresholds of the
eligible beneficiary criterion is exceeded. In
addition to the above tax schemes and cross-border
tax schemes, standardized tax schemes can also be
distinguished. A tax scheme covers both a cross-
border tax scheme and a standardized tax scheme
and a cross-border tax scheme can also be a
standardized tax scheme as a scheme is
standardized if it can be implemented or made
available for implementation to more than one
beneficiary without the need to change its
significant assumptions.
The obligation to provide information on tax
schemes concerns three categories of entities: (i) a
promoter, (ii) a beneficiary and (iii) a supporting
entity. A tax advisor, attorney, legal advisor,
employee of a bank or another financial institution
advising clients can be a promoter. An entity may
be assigned the promoter’s role if it offers, makes
available, implements or manages the
implementation of the arrangement. A beneficiary
is an entity to which the arrangement is made
available, at which the arrangement is
implemented, or which is prepared to implement,
or has performed an activity to implement the
arrangement. A supporting entity is an entity that
has agreed to provide, directly or through other
persons, assistance, support or advice on the
development, marketing, organisation, making
available for implementation or supervision of the
arrangement implementation, in particular a
statutory auditor, public notary, an accountant or a
financial officer.
A promoter and a beneficiary shall report a tax
scheme within 30 days following the occurrence of
one of the events specified in the Act. The deadline
within which a supporting entity should comply with
the MDR obligations depends on the type of
obligation concerned and it is 5 or 30 days,
respectively.
MILLER CANFIELD
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.