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Regulation Of The Minister Of Finance Of 10 September 2009 On The Way And Determine The Income Of Legal Persons By Way Of Assessment And How And The Elimination Of Double Taxation In The Case Of Correction Of Earnings Related Entities

Original Language Title: ROZPORZĄDZENIE MINISTRA FINANSÓW z dnia 10 września 2009 r. w sprawie sposobu i trybu określania dochodów osób prawnych w drodze oszacowania oraz sposobu i trybu eliminowania podwójnego opodatkowania osób prawnych w przypadku korekty zysków podmiotów powi

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REGULATION OF THE FINANCE MINISTER 1)

of 10 September 2009

on the manner and mode of determining the income of legal persons by way of assessment and the manner and mode of elimination of double taxation of legal persons in the case of the adjustment of the profits of related parties

On the basis of art. 11 (1) 9 of the Act of 15 February 1992. o corporate income tax (Dz. U. 2000 r. Nr 54, poz. 654, with late. 1. 2) ) The following shall be managed:

Chapter 1

General provisions

§ 1. 1. The provisions of the Regulation shall govern the manner and mode of determining, by means of an estimate of the revenue referred to in Article 1. 11 of the Act of 15 February 1992. on corporate income tax, and the manner and mode of elimination of double taxation in the case of the adjustment of the profits of affiliated entities.

2. The provisions of the Regulation shall apply accordingly when determining the part of the income of the taxpayer not resident or established in the territory of the Republic of Poland, conducting business through the establishment of the territory of the Republic of Poland Polish foreign establishment, and a taxpayer having a place of residence or head office in the territory of the Republic of Poland, conducting business through a foreign establishment situated in the territory of another State, subject to attributing it setting.

3. The application of the regulations contained in the provisions of the regulation is to determine and tax the income which may be reasonably recognized as being obtained in the territory of the Republic of Poland, and in the case of entities having their place of residence or established in the territory of the Republic of Poland, also income obtained abroad, if the rationally they can be attributed to those entities.

4. The provisions of the Regulation shall not apply in the case of transactions in which the price or method of determining the price of the subject of such a transaction results from the statutes and issued on their basis of normative acts.

§ 2. Whenever there is a regulation in the regulation:

1) entity-means a natural person, a legal person or an organizational unit without legal personality;

2) a national entity-this means a national entity within the meaning of the provisions of the Act of 29 August 1997. -Tax Ordinance (Dz. U. of 2005 No. 8, pos. 60, of late. 1. 3) );

3) foreign entity-this means a foreign entity within the meaning of the provisions of the Act mentioned in point 2;

4) affiliated entities-this means the entities between which there are links and the relationships referred to in art. 11 (1) 1, 4-6 and 8a of the Act mentioned in § 1 par. 1;

5) independent entities-these shall mean entities between which there is no link and the relationships referred to in point 4;

6) a foreign plant-this means a foreign plant within the meaning of art. 4a item 11 of the law mentioned in § 1 par. 1;

7) [ 1] a tripartite procedure-this means a procedure for mutual communication between at least three countries;

8) [ 2] -this means the Minister responsible for public finance, who, under the tripartite procedure, contains a binding agreement to eliminate double taxation in the event of a correction of the profits of the related parties.

§ 3. 1. The tax authorities and the treasury control authorities shall determine by way of assessment the income of the related party in the amount which the independent entities would have established among themselves.

2. [ 3] In order to estimate the income referred to in paragraph 1, only the methods referred to in § 12-18 shall be used, subject to the principles set out in Chapters 2, 5 and 5a. The estimated income in this way is considered to be the market value.

2a. [ 4] When choosing the method referred to in paragraph. In particular, the following shall be taken into account by the tax authorities and the tax authorities:

1) the conduct of transactions, including the functions performed by the entities in the transactions to be compared, taking into account the assets they involve, including also material and intangible assets not included in the assets, human capital and the incurred the risk;

2) the availability of reliable information, necessary for the application of the selected method, in particular concerning comparable transactions or entities;

(3) the comparability of transactions or entities which should comply with the rules set out in Chapter 2.

3. Estimation referred to in paragraph. 1, includes, in particular, any transactions which result in the transfer of ownership or transfer to the use of tangible and intangible goods and for the provision of loans (loans) and for the provision of services and implementation joint ventures referred to in § 23.

§ 4. 1. The tax authorities or treasury audit bodies shall determine the market value of the object of the transaction between related parties on the basis of the information available to those authorities, which may have an impact on the determination of that value.

2. When determining the market value of the object of the transaction and the determination on that basis of the income, the tax authorities or treasury control authorities shall ensure that taxable persons are able to participate actively in any stage of the proceedings, and in particular the presentation to those authorities of documents, notes and other data on the basis of which the price calculation was made.

3. When determining the market value of the transaction object, the tax authorities or treasury control authorities do not take into account the circumstances which could not be known to the parties to the transaction at the date of its conclusion, and which, if known, could cause the indication by the parties of the higher or lower value of the subject matter of

4. If the taxpayer has made the determination of the market value of the object of the transaction on the basis of the method or methods set out in § 12-14 and present to the tax authorities or treasury control authorities the data referred to in the paragraph. 2, and the tax documentation referred to in art. 9a of the law referred to in § 1 par. 1, and the reliability and objectivity of the submitted data shall not give rise to reasonable doubt, those authorities shall determine the market value of the object of such a transaction by applying the method previously adopted by the taxable person, unless the use of a different method, in Whereas the provisions of the Regulation, and in particular Chapter 2 and the data available to it, are more appropriate.

§ 5. 1. If, in transactions (transactions) between related parties, the conditions are less favourable for one of the entities from the conditions which the independent entities would have established, and at the same time in another transaction (transactions) between the same the conditions will be more favourable to that entity, the tax authorities or the treasury control authorities shall not adjust the prices of the items of such transactions in cases where the lesser of the benefits accruing to the first transaction (transactions) are compensated by the greater benefits obtained in connection with this another transaction (transactions).

2. The offense referred to in paragraph 2. 1, it must be considered to be in line with market conditions, if such compensation would be carried out by independent operators.

Chapter 2

Transaction comparability analysis

§ 6. 1. [ 5] The determination of the income of the related party by way of assessment shall be preceded by the examination by the tax authorities and the treasury of the analysis of the conditions established between related parties and the examination of the compliance of those conditions with the conditions which they would have established an independent entity among themselves, or the conditions that would have been established by the entity concerned with an independent entity in comparable circumstances, hereinafter referred to as 'the analysis of comparability'.

(2) Such transactions in which none of the differences between comparable transactions or between entities containing those transactions could be considered comparable in such a way as to materially affect the price of the subject of such a transaction. the free market, or reasonably accurate amendments to eliminate the significant effects of such differences.

3. [ 6] Comparability factors should be taken into account when analyting comparability, in particular:

1) the characteristics of goods, services or other benefits;

2) the course of the transaction, including the functions performed by the entities in the comparison of transactions, taking into account the assets involved, human capital and the risks incurred;

3) the terms of the transaction specified in the contract or agreement, or any other evidence documenting these conditions;

4) the economic conditions prevailing at the time and place of the transaction;

5) an economic strategy.

4. [ 7] The carrying out of a comparability analysis shall consist in particular of the following steps:

1) the general analysis of information concerning the taxpayer and its economic environment;

2) an analysis of the terms or conditions imposed or imposed between related parties, in particular on the basis of the functions performed by them, the assets involved and the risks incurred, resulting in the identification of the economically significant factors in the the circumstances of the case under consideration, including the paragraph. 3;

3) to check whether there is a possibility of comparing the conditions established or imposed between entities related to the conditions applied by the entity with independent entities;

4) identification and verification of comparable conditions set by independent entities;

5) the choice of the most appropriate method in the circumstances of the case taking into account the principles set out in § 3 (3). 2a, and then determine the necessity of using the profitability index and choosing its kind suitable for the selected method;

6) the identification of the comparative data for the selected method on the basis of the economically significant factors referred to in point 2, and the determination of the need to make the corrections referred to in paragraph 2. 2;

7) analysis of obtained comparative data.

§ 7. 1. [ 8] In carrying out an analysis of the comparability of transaction subjects, account should be taken of differences in the characteristics of goods, services or other benefits which are the subject of the transactions in question, to the extent that these characteristics may affect the value of the transactions. the market subject matter and the method used.

(2) In particular, the characteristics of transaction subjects having an impact on the market value, which are subject to the determination of the comparability of the market value of those items on the market in question, are:

1) tangible goods-the physical characteristics of these goods, their quality, their durability, their availability, their rights and their rights, the availability of goods and services linked to them, as well as the volume of delivery;

2. intangible assets-the form or type of transaction, the duration and degree of protection of such goods and the anticipated benefits associated with the exploitation of these goods;

3) services and other benefits-the type, scope and quality of such services and benefits.

3. Where the method used does not require a strict comparability of the subjects of the transaction, the analysis of the comparability referred to in the paragraph shall be analysed. 1, it should be carried out in relation to the industry to which the transaction relates, with particular reference to the provisions of § 8 and 10.

§ 8. (1) When carrying out an analysis of the comparability of transactions in a given market, account should be taken of the transaction, including the functions performed by the parties in the transactions to be compared, taking into account the analysis of the transactions involved. assets, including tangible and intangible assets that are not included in assets, human capital and risk-borne.

2. The analysis of the entities participating in the transaction should determine which of the participants of the transaction perform functions, involve the assets and bear the risks economically important, that is the ones which are the most important for the creation of value and profit resulting from the transaction.

3. When carrying out the analysis referred to in paragraph. 1 and 2, account shall be taken in particular of:

1) the types of functions performed by the parties of the transaction;

2) the type and value of the involved assets and material goods, in particular land, buildings, structures, premises, machinery, equipment, means of transport;

3) the type and value of the assets involved and intangible goods;

4) the degree of involvement of human capital;

5) the types and distribution of economic risks and the liability of the parties to the transaction

§ 9. 1. An analysis of the comparability of transactions should take into account the conditions set out in the transactions to be compared, to the extent that the differences between these conditions may affect the market value of the subject matter of the transaction.

2. The conditions of transactions liable to affect the market value of the objects of the compared transactions can be calculated in particular:

1) the terms, conditions and forms of payment;

2) the period in which the transaction is carried out, and the factors related to the passage of time;

3) timeliness of the execution of transactions;

4) securing the execution of the transaction.

§ 10. The analysis of the comparability of transactions carried out on different markets should take into account the conditions prevailing on the markets to be compared, to the extent that those conditions affect the market value of the transactions concluded on those markets. The following shall be included in particular:

(1) the size and location of the market concerned and the nature of the market (retail or wholesale);

(2) the ratio of supply to demand for the goods or services concerned, the purchasing power of consumers, the tender power of suppliers and the degree of competition;

3) the availability of substitutable goods and services and the risks associated with it;

4) the essence and scope of the government's market regulation and the degree of risk of doing business in the relevant market;

5) the level and structure of the costs associated with the transaction in the relevant market;

6) [ 9] the duration of the transaction, in particular the existence of an economic, business cycle, or product life cycle.

§ 11. 1. An analysis of the comparability of transactions should take into account the economic strategy used, where it has an impact on the value of the transaction. The economic strategy shall include in particular:

1) the application of promotional prices when entering the market concerned;

2. a temporary reduction in profits in exchange for higher long-term profits;

3) incuation for a period of higher costs in order to remain on the market or gain a new one;

4) [ 10] marketing of innovative products or services.

2. The influence of factors connected with the implementation declared by the entity of the economic strategy shall not be taken into consideration in cases where the subsequent actions of the entity do not confirm the implementation of the given strategy, unless the absence of such a realization is due to the reasons for the independent entity which it could not have foreseen by taking the strategy in question.

Chapter 3

Basic methods for determining taxpayers ' incomes by way of price estimation

§ 12. 1. The method of comparable uncontrolled price is to compare the price of the subject of the transaction established in transactions between entities related to the price used in comparable transactions by independent parties and on that basis the market value of the object of the transaction between related parties.

2. The comparison referred to in paragraph. 1, is based on the prices charged by the entity in a given or comparable market in transactions with independent entities (internal price comparison), or on the basis of prices which other independent entities apply in comparable transactions. (external price comparison).

3. [ 11] (repealed).

§ 13. 1. The method of the resale price consists in lowering the price specified in the transaction of the given entity with an independent entity, concerning the goods or services previously acquired by that entity from the entity associated with it, with a margin of the resale price. Such a fixed price may be considered to be the market price specified in the transaction of the entity in question with the related party.

2. The margin of the resale price includes direct expenditure and, subject to the paragraph. 3, the indirect expenditure incurred by the entity in question in relation to that transaction and the relevant profit rate for that transaction. If the entity has processed or otherwise altered the value of the goods or services prior to the outturn, the change shall be taken into account in the adjustment of the price referred to in paragraph 1. 1.

3. The margin of the sale price does not include the expenses constituting the equivalent of the price of the subject of the transaction and the costs of the general management, that is the cost of operation of the entity as a whole and the cost of managing this entity.

4. The margin of the resale prices shall be determined by reference to the margin level that the same entity uses in comparable transactions with independent entities, or the margin used in comparable transactions by independent entities.

5. In determining the amount of the margin, the resale prices shall be taken into account in particular:

1) factors related to the passage of time between the original purchase and the outsupply, including the changes in the market in terms of costs, exchange rates, inflation;

2) changes in the state and degree of consumption of things or rights subject to the transaction, including being the result of technical progress in a given field;

3) the exclusive right of the departure for the sale of certain items or rights, which may influence the decision on the change of margin.

§ 14. 1. The reasonable margin method (the "cost plus") is to determine the selling price of the goods and rights and to provide the services in the transaction of the given entity with an associated entity at the level of the sum of the cost base and the profit markdown, comparable to the cost base and profit markups established between independent entities that take into account comparable functions, risks incurred and the assets involved.

2. The cost base in this method is understood to be the sum of the costs directly connected with the acquisition or development of the subject matter of the transaction and indirect costs, excluding the costs of the general management, that is the costs of the operation units as a whole and the cost of managing this entity.

3. In a reasonable margin method, the profit mark-up is calculated on the basis of the cost base.

4. A profit exposure in relation to a particular cost base referred to in paragraph. 3, it shall be determined by reference to the level of profit that the same entity uses in comparable transactions with independent entities, or the profit used in comparable transactions by independent operators.

Chapter 4

Determination of revenue by means of transactional profit

§ 15. 1. In cases where income cannot be determined by the methods set out in § 12 to 14, the use of transactional profit methods may be used to determine the income on the basis of the profit that the entity could reasonably expect to expect. participating in a transaction.

2. The methods of transaction profit should be applied in such a way as not to increase the tax burden of the entity solely because of the attainment of profits lower than the profits on average achieved by other entities, if a smaller profit or failure to achieve profit by the given the operator can be attributed to economic or organisational factors.

§ 16. In determining the revenue from transactions carried out by the related entities, the use of the following methods of transactional profit may be used:

1) the method of distribution of profits and

2) the method of net transaction margin.

§ 17. 1. The method of distribution of profits, as referred to in § 16 (1), consists in determining the total profits made by the related parties in connection with the transaction (transactions) and the distribution of those profits among those entities in the proportion in which they would have made this division independent.

1a. [ 12] The total profits referred to in paragraph 1. 1, shall be determined using the common accounting standard and the single currency, if the related entities for which the profit is designated shall apply the common accounting standard and keep accounts in the common currency. Otherwise, the total profits shall be determined by the application of one of the accounting standards and one of the currencies used by the related parties.

2. Proportional distribution of profits, which would apply to independent entities participating in a given transaction (transactions), shall be made by means of:

1) residual analysis, which divides the sum of the profits obtained in connection with a given transaction (transactions) by the related entities participating in that transaction (transactions) in two stages; in the first stage each participant of the transaction assigns a core profit adequate for the type of transaction to be achieved by independent operators, performing routine functions, involving typical assets and having a standard risk in such transactions; in the second step, any other post-division in the first stage profits are shared among the related entities participating in a given transaction in accordance with the rules that the independent bodies involved in such a transaction would have established, or

2) an analysis of the share which divides between the entities related to the combined profit of the transaction, the subject of which is a good created or improved by those entities, based on the relative value of the actions taken by each of the related entities, Having regard to the factors referred to in Paragraph 8.

3. [ 13] Distribution of the profits referred to in paragraph 1, shall be carried out by determining the revenue obtained by each of the related entities and the costs incurred associated with the transaction (s) concerned (transactions). Where the costs associated with the transaction (transactions) exceed the amount of revenue related to it (them), the division shall be subject to loss.

§ 18. 1. The method of net transactional margin referred to in § 16 (2) consists in the survey of the net profit margin that is obtained by the entity in the transaction or transactions with another related party, and the determination of it at the margin level that the same entity obtains in transactions with independent entities, or the margin earned in comparable transactions by independent entities.

2. The net transactional margin referred to in paragraph 2. 1, shall be determined by deducting from the revenue achieved as a result of the transaction of the costs incurred in order to achieve that revenue, including the general costs of the management board.

3. The deductibility of the general costs of the management referred to in paragraph 3. 2, taking into account the proportion in which the revenue from the transaction in the overall amount of the revenue is derived.

(4) In applying the net transaction margin method, account should be taken of the differences between the parties whose margins are compared and, in particular, such factors should be taken into account as: competition from other market participants and spare goods, effectiveness and management strategy, market position, differences in cost structure and cost of raising capital and the degree of experience in business.

Chapter 5

Specific cases and conditions for determining the market value of intangible goods and services

§ 19. 1. In determining the market value of intangible assets or services in transactions between entities related to tax authorities or treasury control bodies, they shall, in the first instance, examine whether independent, reasonably functioning entities would conclude such a the transaction under conditions that have been established by the related parties.

2. In cases where the rationally expected benefit of the entity containing such a transaction is manifestly less than the expenses incurred in connection with the transaction, and the entity does not indicate the rational reasons justifying their litigation in the the tax authorities or treasury audit authorities shall examine the correctness of determining the amount of expenditure incurred.

3. In the test referred to in paragraph. (2) Other costs for the use of the goods or services in question shall also be taken into account.

4. The provisions of the paragraph. 2 shall not apply where the obligation to carry out the legal action in question is the subject of separate rules for the entity concerned.

§ 20. 1. When estimating the income, the tax authorities or treasury control authorities shall determine the costs incurred by the entities related to advertising, in proportion to the benefits of advertising that those entities achieve. If one taxable person bears the cost of advertising, the benefit of which is also achieved by an entity linked to that taxable person, the first entity shall be deemed to be carrying out commercial services within the limits in which they correspond to the nature and the scope of the services. carried out by an independent advertising company.

(2) In particular, in order to determine the proportionality of the expenditure on advertising the conduct of which is likely to benefit two or more related parties, account should be taken of the markets in which the advertisement is carried out, and the share of the sales of advertised goods and services of individual entities related to the markets covered by the advertisement.

§ 21. 1. If a taxable person gives an affiliated loan (credit) to an affiliated entity or receives such a loan (credit) regardless of their purpose and purpose or grant or receive in any form a guarantee or surety, market price for such a service is the interest or commission or any other form of remuneration which would have been agreed for such a service, provided under comparable conditions, independent operators.

(2) The market value of the interest shall be determined on the basis of the lowest interest that the entity would have to pay to an independent entity for obtaining a loan (loan) for a similar period under comparable conditions.

3. In determining the terms referred to in paragraph. 2, account should be taken of all relevant circumstances relating to a particular case, and in particular:

1) the amount of the loan (credit) and the period for which it was granted;

2) the nature and purpose of the loan (credit);

3) the risk and security of the loan (credit), taking into account the special conditions that the lender (the lender) could grant to the borrower (borrower) to an independent;

4) the currency of the loan (credit), the risk of exchange rate changes, the costs of the security measures of the loan (credit) and the measures limiting the risk of changing the exchange rates;

5) commissions height.

§ 22. [ 14] If one party affiliated to the other or with multiple entities undertakes research on behalf of that other entity or entities, in order to determine the revenues of those entities obtained in connection with such (such) transaction (transactions), assign any benefits to the test results obtained to those entities or to one of those entities only. The assignment of these benefits shall be subject to the rules laid down in Chapter 2.

§ 22a. [ 15] 1. If the related entity submits a description of the transaction relating to low value added services to the tax authorities or treasury control authorities, those bodies shall carry out the examination referred to in § 19, first of all, on the basis of the presentation of the description.

2. By services of low added value referred to in paragraph 1. 1, the services of a routine nature shall be understood to assist the service of the customer, in general or easily accessible, which do not contribute to the creation of high added value for the service provider or the recipient.

3. A description of the transaction relating to the low value-added services referred to in paragraph 3. 1, should include in particular:

1) an indication of the type of service provided, together with the justification for the classification of the service as a low-value service referred to in paragraph. 2;

2) confirmation that the service has been performed, and a detailed explanation of the rationality of the acquisition of services, including the obtained or expected benefits;

(3) a description and justification for the provision of services;

4) a list of the expenses incurred by the related entities related to the services provided, together with their description and analysis;

5) a list of the shareholder's expenses;

6) description of the cost sharing key;

7) a catalogue of services on demand with their description;

8) an indication of how the remuneration payable for the services provided and the amount thereof are calculated, together with the justification for the method used and the manner in which it is used;

9) documentation that can be presented.

4. Expenditure related to the services of low value added shall include costs directly and indirectly linked to the provision of the service, excluding the expenses of the shareholder.

5. The expenses of the shareholder shall be understood by the expenses incurred by the entity holding the shares (shares) in the second related entity, which benefits only the entity holding the shares (shares) in the second related entity.

(6) The way in which the costs incurred by the related parties in relation to the low value added services provided for under these services should be distributed should be analysed in the light of the conditions that would have been established between the parties involved in the services provided for in Article 6 (1) ( independent.

7. The following shall be specified:

1) a sample catalog of services with a low value added value, which is Annex 1 to the Regulation;

2) a sample catalogue of the shareholder's expenditure, which is Annex No 2 to the Regulation.

§ 23. (1) If the taxable person participates in the costs jointly incurred by the entities linked to the creation of intangible assets, the amount of the charges borne by the taxable person for that title may be deemed to be determined in accordance with market rules only at that time, where such conditions, in the light of the expected benefits of such participation, would be acceptable to independent parties.

2. The conditions referred to in paragraph. 1, they concern in particular the proportionate to the expected benefit of the burden of the operators and, in addition, proportional to the extent of the burden-sharing burdens which were not expected (to be taken into account) in the definition of those conditions.

3. If the taxable person has the possibility of obtaining comparable benefits under the agreement referred to in paragraph. For the purposes of determining the market value of the benefits of that taxable person, a lower value should be used for the purposes of determining the market value of the benefits of such a taxable person.

4. In the cases referred to in paragraph. 1-3, § 4 (1) 3 shall apply mutatis mutandis.

@ZM1@Chapter 5a @ZM2@

@ZM1@Restrukturyzacja działalności @ZM2@

§ 23a. [ 16] 1. The tax authorities and the treasury audit bodies shall examine the compliance of the conditions established or imposed in the context of the restructuring of the activities between entities related to the conditions that the independent entities would have established.

2. By restructuring the activities referred to in paragraph. 1, the transfer between entities related to economically significant functions or assets, or risks, shall be understood.

3. In the course of the study referred to in paragraph. 1, account should be taken of the economic reasons for the restructuring of the business, the expected benefits of restructuring, including the synergies, and the options that are realistically available to the affiliated entities involved in the restructuring.

4. The tax authorities and the treasury control authorities shall recognise the accuracy of the assignment of an economically significant risk to a related party only if the ability of the entity to take decisions in the management of that risk is demonstrated. or financial capacity to bear the burden in case of materialisation of this risk.

5. The tax authorities and the tax inspection bodies shall verify the correctness of the determination of the right to remuneration of the related entity and the value of the remuneration of the related entity in the case of restructuring of the activity, taking into account in particular options that are realistic for those involved in the restructuring.

Chapter 6

Fiscal adjustment mode

§ 24. 1. In order to eliminate double taxation of incomes of affiliated entities, if the income of a taxable person who is a national entity is included in the income of a foreign entity by the tax administration of another country and taxed accordingly in the relationship with the determination by this administration of conditions that would be agreed between the independent parties, at the request of a national entity, the Minister responsible for public finance may adjust the income of that taxable person, as long as the rules are relevant international agreements to which the Rzeczpospolita is a party Poland, such an adjustment foresees.

2. The adjustments referred to in paragraph 2. 1, may be made in the event that the conditions laid down by the tax administration of that other country, in the light of the provisions of the Regulation, are in accordance with the conditions which the independent bodies would have agreed upon.

3. In the event of the correction referred to in paragraph. 1, the competent tax authority shall change the amount of the tax liability of that taxable person, in so far as the adjustment is due.

Chapter 7

Method and mode of elimination of double taxation in the case of the adjustment of related party profits

§ 25. 1. In order to eliminate double taxation of income, a national entity may request the Minister responsible for public finance to initiate a mutual agreement procedure pursuant to the Convention of 23 July 1990 on the elimination of double taxation in the case of the adjustment of profits of related companies (Dz. U. 2007 Nr 152, poz. 1080) or on the basis of agreements on the avoidance of double taxation, to which the Republic of Poland is a party. The application should be made no later than three years after service of the taxable person or entity with him or his related control protocol or tax decision which leads or may lead to double taxation, unless the contract is the avoidance of double taxation, which is the basis for the application, shall specify a different date. The three-year period shall start from the first of the following dates: the date of service of the audit protocol or the date of service of the tax decision.

2. The Minister responsible for public finance shall inform in writing:

1) a national entity on receipt of the request referred to in paragraph. 1,

2) the competent authorities of other States of the submission of the request by the national entity referred to in paragraph 1. 1, at the same time sending a copy of this application

-within one month from the date of its impact.

3. The application referred to in paragraph 1. 1, shall include at least:

1. the identity of the national entity and of the related entities to which the procedure relates, in particular: name, address of the place of residence or place of establishment, tax identification number;

2) a description of the facts of the case, taking into account the existing links between the national entity and the related entities referred to in point 1;

(3) the determination of the fiscal year to which the application relates;

4) copies of tax decisions, audit protocols or other documents providing for the existence of double taxation;

5) information concerning the instituted by the taxpayer or the related entities referred to in point 1, tax or judicial proceedings, including the court judgments issued in the case;

6) the justification of the request, in particular including an explanation as to the application of the rules laid down in art. 4 of the Convention referred to in paragraph 4. 1;

(7) a statement by the national entity that it is prepared to make available to the Minister responsible for public finance the full documentation and to provide any information that may affect the outcome of the case.

4. At the request of the Minister responsible for the public finances, the documents indicated by him in the case should be translated into the agreed with the competent authorities of the other countries concerned, the working language.

5. If the application does not contain all the elements indicated in the paragraph. 3 and 4, the Minister responsible for public finance shall invite the national entity within a period of 2 months from the date of receipt of the application to complete it.

(6) The check shall be deemed to have been notified on the date of the impact of the application referred to in paragraph 1. 1, containing all the elements indicated in the paragraph. 3 and 4 or on the date of receipt of the last of the supporting documents, the request for call referred to in paragraph 1. 5.

7. If, in the opinion of the Minister responsible for public finance, the proposal referred to in paragraph 1. 1, is justified and the matter cannot be dealt with by it under national procedures, in such a way as to take into account the request of a national entity, it shall initiate a mutual agreement procedure, informing the competent authorities of the other States concerned of the This application concerns, by attaching copies of the information referred to in paragraph 1. (3) At the same time, the Minister responsible for public finances of the initiation of the mutual agreement procedure shall inform the national operator.

(8) The Minister responsible for public finance shall, on the basis of the information available to him, inform the competent authorities of the other countries concerned and the national operator whether the request has been made within the time limit set out in the paragraph. 1, and of the date from which the two-year period referred to in Article 4 is calculated. 7 ust. 1 of the Convention referred to in paragraph 1. 1.

(9) The mutual agreement procedure should be completed within 2 years of the date referred to in paragraph 1. 10.

10. The duration of the biennial period referred to in paragraph. 9, starts with the later of the following dates:

1) the date of service of the final tax decision or equivalent document;

2. the date of notification of the case referred to in paragraph. 6.

(11) The subtraction of the remedies available under national law on the proposal does not preclude the conduct of the procedure referred to in paragraph 1. 1. A final judgment of the court on the subject of the proposal excludes the application of art. 7 ust. 1 of the Convention referred to in paragraph 1. 1.

12. The result of the completed procedure referred to in paragraph. 1, provides the basis for the opening of proceedings to determine the amount of income or loss of the taxpayer.

13. To the procedure conducted on a request made under the Double Taxation Convention the provisions of the paragraph. 3-8 and 11 and 12 shall apply mutatis mutandis.

14. The provisions of the paragraph. 9-12 shall apply mutatis mutandis in the case of accession of the Minister responsible for public finance to the procedure initiated pursuant to the Convention referred to in paragraph 1. 1, by the competent authorities of other countries.

15. The provisions of the paragraph. 11 and 12 shall apply mutatis mutandis in the case of accession of the Minister responsible for public finance to the procedure initiated under the double taxation conventions referred to in paragraph 1. 1, by the competent authorities of other countries.

16. [ 17] The provisions of the paragraph 1-12 shall apply mutatis mutandis in the case of trilateral procedures initiated pursuant to the Convention referred to in paragraph 1. 1.

17. [ 18] The provisions of the paragraph 9-12 shall apply mutatis mutandis in the case of trilateral procedures initiated pursuant to the Convention referred to in paragraph 1. 1, to which the Minister responsible for public finances acceded as a participant.

18. [ 19] The provisions of the paragraph 3-8 and paragraph 11 and 12 shall apply mutatis mutandis in the case of trilateral procedures initiated under the Double Taxation Convention.

19. [ 20] The provisions of the paragraph 11 and 12 shall apply mutatis mutandis in the case of trialoges initiated under the Double Taxation Convention, to which the Minister responsible for public finance has acceded as a participant.

Chapter 8

Transitional and final provisions

§ 26. The existing provisions shall apply to cases initiated and not completed before the date of entry into force of this Regulation.

§ 27. The Regulation shall enter into force after 14 days from the date of the announcement. 4)

1) The Minister of Finance directs the government administration-public finances, pursuant to § 1 paragraph. 2 point 2 of the Regulation of the Prime Minister of 16 November 2007. on the detailed scope of the action of the Minister of Finance (Dz. U. No 216, item. 1592).

2) Amendments to the text of the single law have been announced in the Dz. U. 2000 r. Nr 60, poz. 700 and 703, No. 86, pos. 958, Nr 103, poz. 1100, Nr 117, pos. 1228 i Nr 122, poz. 1315 and 1324, of 2001. No. 106, pos. 1150, Nr 110, poz. 1190 and No 125, pos. 1363, 2002 Nr 25, pos. 253, No. 74, pos. 676, Nr 93, poz. 820, No. 141, pos. 1179, Nr 169, poz. 1384, Nr 199, pos. 1672, Nr 200, poz. 1684 and No. 230, pos. 1922, 2003. Nr 45, poz. 391, Nr 96, poz. 874, Nr 137, poz. 1302, Nr 180, poz. 1759, Nr 202, poz. 1957, Nr 217, poz. 2124 i No 223, pos. 2218, 2004 Nr 6, pos. 39, Nr 29, poz. 257, No 54, pos. 535, Nr 93, pos. 894, Nr 121, poz. 1262, Nr 123, pos. 1291, Nr 146, poz. 1546, No. 171, item. 1800, Nr 210, pos. 2135 i No 254, pos. 2533, of 2005 Nr 25, pos. 202, Nr 57, poz. 491, Nr. 78, pos. 684, Nr 143, poz. 1199, No 155, pos. 1298, Nr 169, poz. 1419 and 1420, No. 179, pos. 1484, Nr 180, pos. 1495 and No 183, pos. 1538, 2006 Nr 94, pos. 651, No. 107, pos. 723, No 136, pos. 970, Nr 157, pos. 1119, Nr 183, poz. 1353, Nr 217, poz. 1589 and No. 251, pos. 1847, of 2007. No. 165, item. 1169, No. 171, pos. 1208 and Nr 176, pos. 1238, 2008 No. 141, pos. 888 i Nr 209, poz. 1316 and 2009 No 3, pos. 11, No. 19, pos. 100, Nr 42, poz. 341, No. 65, pos. 545, No. 69, pos. 587, Nr. 79, pos. 666, Nr 125, poz. 1035, Nr 127, pos. 1052 and Nr 157, pos. 1241.

3) Amendments to the text of the single law have been announced in the Dz. U. of 2005 Nr 85, pos. 727, Nr 86, pos. 732 and Nr 143, pos. 1199, 2006 No. 66, pos. 470, Nr 104, poz. 708, Nr 143, poz. 1031, No. 217, pos. 1590 and No. 225, pos. 1635, 2007 No. 112, item. 769, Nr 120, poz. 818, No. 192, pos. 1378 and No. 225, pos. 1671, 2008 No. 118, pos. 745, Nr 141, poz. 888, Nr 180, pos. 1109 and No. 209, pos. 1316, 1318 and 1320 and 2009 Nr 18, pos. 97, Nr 44, poz. 362, No. 57, pos. 466, Nr 131, poz. 1075 and No. 157, pos. 1241.

4) This Regulation was preceded by the Ordinance of the Minister of Finance of 10 October 1997. on the manner and mode of determining the income of taxable persons by way of an estimate of the prices in transactions carried out by those taxable persons (Dz. U. Nr 128, poz. 833 and 2003 Nr 189, item. 1856), which is repealed with effect from the date of entry into force of this Regulation, according to the wording of the Article. 12 of the Act of 6 November 2008. o amend the Personal Income Tax Act, the Law on Corporate Income Tax and some other laws (Dz. U. Nr 209, poz. 1316).

Annex 1. [ EXAMPLE OF LOW VALUE-ADDED SERVICES CATALOG]

Annex No 1

SAMPLE CATALOG OF LOW VALUE ADDED SERVICES [ 21]

Services with a low value added shall include in particular:

A. IT services, for example:

A. 1. creating and developing an IT system and managing it;

A. 2. examination, development, installation and regular or extraordinary technical maintenance of the software;

A. 3. examination, development and regular or extraordinary maintenance of computer equipment;

A. 4. the provision and transmission of data;

A. 5. Backup services

B. Services relating to the management of human resources, for example:

B. 1. activities related to standard and extraordinary staff management (legal, contractual, administrative, social security and taxes);

B. 2. the selection and recruitment of personnel;

B. 3. assistance in determining career paths;

B. 4. assisting in the development of a reward and benefit system (including options for stock options);

B. 5. identifying the staff evaluation process;

B. 6. training of personnel;

B. 7. the secondment of staff for a limited period

B. 8. the coordination of the division of staff into temporary and permanent staff and the management of redundancies

C. Marketing services, for example:

C. 1. examination, development and coordination of marketing activities;

C. 2. examination, development and coordination of trade promotions;

C. 3. examination, development and coordination of advertising campaigns;

C. 4. market investigation;

C. 5. creating and managing a website;

C. 6. issuing of periodicals intended for the customers of the related party.

D. Legal services, for example:

D. 1. assistance in drawing up and reviewing agreements and agreements;

D. 2. ongoing legal advice;

D. 3. drawing up and ordering legal and tax opinions;

D. 4. assistance in fulfilling legal obligations;

D. 5. assistance in litigation;

D. 6. central management of relationships with insurance companies and brokers;

D. 7. tax consultancy;

D. 8. transfer pricing studies;

D. 9. the protection of intangible goods.

E. Accounting and administrative services, for example:

E. 1. assistance in the preparation of budget and operational plans, carrying out compulsory accounts and accounts;

E. 2. assistance in the preparation of periodic financial statements, annual and extraordinary balance sheets or outliers (other than consolidated financial statements);

E. 3. assistance in fulfilling tax obligations, such as filling in tax returns, calculation and payment of taxes, etc., processing of data;

E. 4. audit of the accounts of related parties and the management of the billing process.

F. Technical services, for example:

F. 1. assistance in the field of installations, machinery, equipment, processes, etc.;

F. 2. planning and implementation of the usual and extraordinary tasks of maintenance of premises and installations;

F. 3. the planning and implementation of ordinary and extraordinary restructuring operations concerning premises and installations;

F. 4. the transfer of technical knowledge;

F. 5. providing guidance on innovative products;

F. 6. planning for production to reduce overcapacity and to meet demand effectively;

F. 7. assistance in the planning and implementation of investment expenditure;

F. 8. control of efficiency;

F. 9. engineering services.

G. Quality control, for example:

G. 1. creation of high quality policy and high standards of production and provision of services;

G. 2. assistance in obtaining quality certificates (e.g. ISO 9000);

G. 3. development and implementation of customer satisfaction programs.

H. Other services:

H. 1. services related to the strategy and development of undertakings in the event of an association with an existing or a related party;

H. 2. corporate security;

H. 3. research and development;

H. 4. Real estate and infrastructure management;

H. 5. logistic services;

H. 6. Inventory management

H. 7. advice on transport matters and distribution strategies;

H. 8. storage services;

H. 9. purchase of services and sourcing of raw materials;

H. 10. management of cost reduction;

H. 11. packaging services.

Annex 2. [ EXAMPLE OF A SHAREHOLDER ' S EXPENSE CATALOG]

Annex No 2

SHAREHOLDER EXPENSE SAMPLE CATALOG [ 22]

The expenditure of the shareholder shall include in particular:

A. Costs of activities related to the legal structure of the entity holding the shares (shares) in the second related entity:

A. 1. The costs of the organisation of the assembly of shareholders of the entity, including the costs

A. 2. The cost of issuing shares of this entity;

A. 3. Costs of the management board of this entity, related to the statutory and statutory tasks of the members of the Management Board of this entity;

A. 4. Costs of ensuring compliance with the tax law (tax returns, accounting, etc.).

B. Reporting costs of the entity holding the shares (shares) in the second related entity, including the consolidation of the reports:

B. 1. The costs of the consolidated financial statements of that entity;

B. 2. Costs of the consolidated financial statements;

B. 3. Costs associated with the application of and compliance with cross-border tax consolidation;

B. 4. Costs related to the audit of this entity.

C. Costs of acquiring funds for the acquisition of shares or shares.

D. Costs of management and control activities (monitoring) related to the management and protection of investments in shares, except where a third party would be interested in purchasing them or carrying out those activities:

D. 1. The cost of the audit of the accounts of another affiliated entity shall be borne by that entity, if it is carried out solely in the interest of the holding (s) in the second related party;

D. 2. Costs of drawing up and approving the financial statements of the related party in accordance with the accounting rules of the State of that other related entity

D. 3. Information technology costs incurred solely for the benefit of the holding (s) in the second related party;

D. 4. Costs of a general review of the related party's performance if it does not involve the provision of consultancy services to other related parties.

E. The costs of the initial registration of the entity on the stock exchange and the costs of the activity related to the listing on the stock exchange of the entity in the following years after the initial registration (eg. preparation of the documents required by the Exchange Supervisory Authority).

F. Costs related to investor relations of the entity holding the shares (shares) in the second related entity:

F. 1. Costs of press conferences and other methods of communication with:

(i) the shareholders of that entity,

(ii) financial analysts,

(iii) funds and

(iv) the other stakeholders of this entity.

G. Analysis of the sources of funding of related parties and the related change in the financing model of those entities.

H. Costs of increasing the share capital of affiliated entities.

I. Other activities considered to be a shareholder activity: activities related to the adoption and implementation of statutory rules and the rules of conduct in relation to corporate governance by affiliated entities.

[ 1] § 2 point 7 added by § 1 item 1 of the Ordinance of the Minister of Finance dated 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 2] § 2 point 8 added by § 1 item 1 of the Ordinance of the Minister of Finance dated 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 3] § 3 (3) 2 as amended by Paragraph 1 (2) (a) of the a) of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 4] § 3 (3) 2a added by § 1 point 2 lit. b) of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 5] § 6 par. 1 in the version set by Paragraph 1 (3) (a) of the a) of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 6] § 6 par. 3 as amended by Paragraph 1 (3) (a) of the b) of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 7] § 6 par. 4 added by § 1 point 3 lit. c) of the Regulation of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 8] § 7 ust. 1 in the wording set by § 1 item 4 of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 9] § 10 point 6 added by § 1 item 5 of the Ordinance of the Minister of Finance dated 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 10] § 11 par. 1 point 4 added by § 1 item 6 of the Ordinance of the Minister of Finance dated 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 11] § 12 par. 3 repealed by § 1 item 7 of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 12] § 17 par. 1a added by § 1 point 8 letter a) of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 13] § 17 par. 3 in the wording set out in point 8 (1) (a) of the b) of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 14] § 22 in the wording set by § 1 item 9 of the Ordinance of the Minister of Finance dated 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 15] § 22a added by § 1 item 10 of the Ordinance of the Minister of Finance dated 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 16] Chapter 5a added by § 1 item 11 of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 17] § 25 ust. 16 added by § 1 item 12 of the Ordinance of the Minister of Finance dated 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 18] § 25 ust. 17 added by § 1 item 12 of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 19] § 25 ust. 18 added by § 1 item 12 of the Ordinance of the Minister of Finance dated 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 20] § 25 ust. 19 added by § 1 item 12 of the Ordinance of the Minister of Finance of 17 June 2013. amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 21] Annex No 1 added by § 1 item 13 of the Ordinance of the Minister of Finance of 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.

[ 22] Annex No. 2 added by § 1 item 13 of the Ordinance of the Minister of Finance of 17 June 2013 amending the Regulation on the manner and mode of determining the incomes of legal persons by way of estimation and the manner and mode of elimination of double taxation of legal persons in the case of adjustment of the profits of associated entities (Journal of Laws of the Act of 768). The amendment came into force on 18 July 2013.