Withholding tax – first WHT opinions issued by the authorities

As of 1 January 2022 the repeatedly deferred mechanism of withholding tax collection and refund (“pay and refund”) came into force. Consequently, in general tax remitter will no longer be entitled to automatically apply WHT preferences, but will be obliged to withhold tax at the statutory rate. Only then he may apply for tax refund.  Alternative solution is to apply for an opinion confirming right to apply the WHT preference.

Applying for WHT opinion – what should you know?

APPLICATION FOR WHT OPINION MAY CONCERN PAYMENTS:

• of passive character, i.e. dividends, interest and royalties and fees for particular services,
• exceeding PLN 2M in a tax year – the threshold is calculated for all passive payments made jointly to one taxpayer in a tax year, and
• made to related party not being a Polish tax residents.

PAY AND REFUND MECHANISM – APPLICABLE SCENARIOS:

• Withholding of tax at the statutory rate under the CIT Act and subsequent claiming of refund,
• Possibility to apply during payment the rate provided by the DTT on the basis of:
• Applicable WHT preference opinion or
• Submission by the remitter of a statement on fulfilment of conditions for application of the exemption (WH-OSC), which includes, inter alia, the remitter’s obligation to verify whether the taxpayer conducts actual business activity in the country of residence.

ISSUES TO BE AWARE OF:

• An application for an opinion may be made by a tax remitter or the taxpayer.
• A positive WHT opinion of tax authorities on WHT preferences provides a taxpayer/ remitter protection with respect to payments covered by the opinion for 36 months from its issuance.Taking into account the long period of waiting for an opinion (up to 6 months from the filing of the application), we recommend to analyze your payments with respect to withholding tax and the possibility to apply preferential taxation.  

If you are interested in verifying your transactions with respect to WHT or filing an application for an opinion on WHT preferences in order to secure your transactions, our experts, who have many years of experience in the area of withholding tax, will provide you with support in this respect.

Should you have any questions, please do not hesitate to contact us.