Response to MP’s interpellation concerning the obligation to prepare group documentation.
On 27 July 2021, the Ministry of Finance responded to an MP’s interpellation no. 23727 concerning transfer-pricing regulations (case no. DCT3. 054. 1. 2021). The questions asked concerned the obligation to draw up group documentation (so-called ‘Master File’).
No information on whether or not the conditions for drawing a Master File are met
The first question concerned the situation where a taxpayer does not have the information in his possession as to whether or not the group of related entities has met the conditions resulting in an obligation to draw up group documentation, but has obtained a statement from the dominant entity that such conditions are not met. Is such action sufficient to avoid potential consequences of not having a Master File?
As the Ministry of Finance explains, the transfer-pricing regulations do not entail an obligation to document the absence of the conditions for an obligation to draft a Master File (e.g. by obtaining a relevant statement from the dominant entity). It has been stressed, however, that the taxpayer should exercise due diligence and take steps necessary to establish what obligations he is under – e.g. by analysing the levels of consolidated group revenues.
Exemption from the obligation to draft Local File versus the Master File requirement
Another question concerned the obligation to draw up a Master File where a taxpayer has exercised the exemption from having to draw up the local transfer-pricing documentation (Local File), and hence is not required to draw up any local documentation.
Under the CIT and PIT acts, the obligation to draw up a Master File rests with related entities, consolidated under the full method or proportional method, which are required to draw up local transfer-pricing documentation.
As a result, an entity exempt from the obligation to draw up a Local File is not required to draw up a Master File. This follows from the fact that one of the conditions for the obligation to draw up a Master File is not met.
Off-shore transactions with unrelated entities
In response to the third question asked as part of the interpellation, the Ministry of Finance stated that drawing up a Local File for the sole purpose of transactions with an unrelated entity from a so-called ‘tax haven’ does not imply an obligation to draw up a Master File as the latter obligation only applies to related entities.
The position of the Ministry of Finance is undoubtedly good news for taxpayers. Nevertheless, it should be remembered that responses to MP’s interpellations do not constitute a source of law and thus the explanations contained in them are not binding upon tax authorities.
Anna Skórska, Transfer Pricing Coordinator, ATA Tax Sp. z o.o.
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