Doubts concerning signing of the TPR form - answer of the Ministry of Finance to a parliamentary interpellation
Upon the entry into force of the so-called Polish Deal, certain transfer-pricing tax-related obligations have changed. On January 1, 2022, the obligation to file a separate TPR form and a statement on the local transfer pricing documentation was lifted.
From 2022 on, in lieu of two separate documents, taxpayers will be submitting a single document comprising a transfer-pricing documentation statement as an integral part of the transfer pricing information.
As a result of ambiguous regulations on the signing and liability of the taxpayer's attorney for the accuracy of the reported transfer-pricing data, the MF, in its response of May 30, 2022, ref. no. DCT3.054.1.2021, clarified the issue of signing the transfer-pricing reports with any qualified electronic signature accepted in another EU country and the liability of the taxpayer's attorney signing the transfer pricing report.
Signing a TPR
The Ministry of Finance has explicitly confirmed that a TPR may be signed with a qualified electronic signature which is certified by an entity designated by any Member State of the European Union.
Liability for signing a TPR
The Ministry of Finance has indicated that a TPR may be signed by an attorney, being an attorney-at-law, advocate, tax advisor or certified auditor, on by virtue of a power of attorney to sign declarations (UPL-1). However, it should be noted that legal effects connected with the correctness and accuracy of the transfer-pricing data provided by the attorney in the TPR rest with the entity obliged for its submission, not with the attorney.
The Ministry of Finance underlines that the Tax Code has not regulated the question of an attorney's liability for providing false information. On the other hand, the Minister of Finance notes that a person, including an attorney-in-fact, who has breached the obligation to submit transfer pricing reports or submitted information inconsistent with the local file or the actual state of affairs, may incur fiscal penal liability for a fiscal offence or fiscal misdemeanour. Fiscal penal liability should be considered in the context of the general principles of liability as set out in the Fiscal Penal Code - i.e. the perpetrator's guilt and intentionality.
The above answer of the Ministry of Finance to an MP's interpellation will probably not solve all the doubts related to the amendments; however, it may constitute an essential source of reference for taxpayers and their attorneys in performing their duties related to transfer pricing.
Kinga Duszna, Tax Consultant, ATA Tax Sp. z o.o.
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