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2015-01-12 < back to list Controversial obligation to collect withholding tax on advance payments
Revenues enlisted in Art. 21 item 1 of the Corporate Income Tax Act earned at the territory of Poland by taxpayers with limited tax liability are taxed in Poland according to the provisions of the double taxation avoidance agreements. Those involve, e.g., advisory services, accounting services, market research services, legal services, advertising services, management and control, data processing and personnel recruitment services.

 

The legal entities, which make payments in this regard are obliged, as the paying agents, to collect at the day of the payment a lump sum income tax on those payments (Art. 26 item 1 of the Corporate Income Tax Act). At the same time, the advance payments on account of services to be provided in the next reporting periods are not revenues (Art. 12 item 4 point 1). The Corporate Income Tax Act does not include any special provision as regards taxation of the advance payments on account of remuneration to be paid in cases specified in Art. 21 item 1 of the Corporate Income Tax Act.

The analysis of the legal provisions leads to the conclusion, that the payment - in order to entail withholding tax obligation - should constitute revenues within the meaning of the Corporate Income Tax Act. As far as the advance payments on account of the future services are concerned, there is no tax obligation. Nevertheless, from the paying agent's point of view, the obligation to collect the lump sum income tax is not dependent from the fact that the advance payment receiver had obtained revenue, but from the fact that the payment was made on a certain basis. Moreover, the above obligation is to be fulfilled at the date of payment. If the paying agent waits until the services are provided and until the foreign service provider obtains revenue, the paying agent will not be able to fulfill its obligation imposed by law.

The tax authorities present rather coherent view in this respect - they that the obligation for withholding tax colection on advance payments is provided by Art. 26 item 1 of the Corporate Income Tax Act, since according to this provision, the paying agents are obliged to collect the lump sum income tax on payments as referred to in Art. 21 item 1 of the Corporate Income Tax Act, and not on revenue obtained therefrom by non-residents (e.g., Director of the Tax Chamber in Warsaw in individual interpretation dated April 22, 2013, No. IPPB5/423-105/13-3/IŚ.

Dr. Janusz Marciniuk 

Tax Advisor, Marciniuk & Partners 

Dziennik Gazeta Prawna, January 12, 2015