Intermediary and specific hallmark

October 14, 2024

An intermediary is an entity, particularly an auditor, notary, accountant, or CFO, a bank, or other financial institution, as well as their employee, who, within the scope of their professional activities, assists, supports, or advises in the development, introduction to the market, organization, making available for implementation, or overseeing the implementation of an arrangement. Thus, an intermediary is usually a professional entity that, unlike a promoter, does not play a primary role in preparing the arrangement but serves a supportive role.

The obligations of the intermediary, beneficiary, and the promoter

According to the law, the promoter or beneficiary should inform the intermediary about the tax scheme number (NSP). However, if they do not, and if, with due diligence, the intermediary has doubts or should have had doubts that the arrangement may constitute a tax scheme, they are required to request a statement from the promoter or beneficiary within five business days that the arrangement is not a tax scheme. Additionally, the intermediary must notify the Head of KAS of these doubts unless they receive a statement or confirmation from the NSP.

What happens if the intermediary fails to fulfill their obligation?

If the intermediary is not informed of the NSP, they must report the tax scheme within 30 days of the actions related to the arrangement. The exception is if they are obliged to maintain professional secrecy, and the beneficiary does not release them from this obligation. In such a case, the intermediary must inform the promoter or beneficiary in writing that the arrangement constitutes a tax scheme and additionally notify the Head of KAS.

Premises for the creation of a tax scheme

A specific hallmark is an independent criterion for the creation of a tax scheme. The legislator has identified 11 criteria for specific hallmarks, including:

• including cross-border payments between related entities in tax-deductible costs. (if the recipient has no tax residency or is in a country practising harmful tax competition),
• making depreciation deductions for the same asset or intangible in more than one country,
• the same income or asset benefits from double taxation avoidance methods in more than one country,
• the difference in the valuation of assets transferred by the two countries is at least 25%.

Does every scheme have to be reported?

For a non-cross-border scheme to be reportable, the criterion of a qualified beneficiary must also be met.

Tags intermediary, promoter, specific hallmark, wspomagający