The Director of National Revenue Information issued favourable rulings (ref. 0111-KDIB1-2.4010.481.2019.2.ANK and 0111-KDIB1-2.4010.418.2019.2.MS) on what happens if a payment is made into a bank account which, as at the payment instruction date, does not feature on the list referred to in Article 96b(1) of the VAT Act (“white list”). In both rulings it was held that if such a payment is notified on time but to a wrong tax office (i.e. to one that has no jurisdiction of the invoice issuer), the mistake will not have adverse consequences for the payer.

As a reminder, as of 1 January 2020, where payment is made for a transaction worth more than PLN 15K with a white-listed taxable person, the payment should be made into his white-listed account, or else the payer may be punished as follows:

  • he will not be allowed to recognise the payment as his tax-deductible cost,
  • he will be jointly and severally liable with the supplier for the latter’s arrears of VAT pro rata to VAT attributable to the supply to which the payment relates.

However, these adverse consequences do not apply if the payer notifies tax authorities within 3 days from instructing the bank to make the payment that the payment was made to a non-white-listed account. The notice should be given to the head of tax office “with jurisdiction of the invoice issuer“.

As a rule, which tax authority has territorial jurisdiction is determined according to the person’s address (residence or registered office) but this rule has exceptions and therefore jurisdictional mistakes may happen when trying to identify the right tax office for your customer or supplier.

The above tax rulings confirm that if a taxable person gave the notice within 3 days as required but, despite acting with utmost care, sent the notice to a wrong tax office (not having jurisdiction of the invoice issuer) due to a mistake or for other reasons for which he is not responsible, the notice should be deemed to have been duly given and the above-described adverse consequences will not apply.

The law that applies in those cases is Article 170(1) and 170(2) of the Tax Code, which says that:

  • if an application is made to a tax authority that does not have jurisdiction in the matter, the authority should promptly transmit the application to the authority that has jurisdiction and notify the applicant accordingly;
  • if an application is made to a wrong tax authority but within the legally required time, the application is considered to be filed on time.

This has been also confirmed by the Finance Minister in his response to FAQs on the application of the white-list regulations. As was explained, “the tax office head who receives a notice of a payment being instructed into a non-white-listed account but who has no jurisdiction of the invoice issuer will transmit such notice to the relevant tax office head.”

While such approach of tax authorities is in general friendly to taxable persons, its application may be excluded in situations where the person concerned did not exercise due care in trying to identify the relevant tax office.

If this issue pertains to your business and you are interested in our assistance, please contact us.

This blog post is provided for general information purposes to keep you up-to-date with changes in tax law, tax rulings by authorities, case law of courts and interesting commentaries. Doradztwo Podatkowe WTS&SAJA shall not be held legally liable for any acts or omissions resulting from reliance on such information.