1. Sale to consumers
Tax shall be levied only on the sales made to consumers, provided that they are made:
• on the territory of Poland;
• within the business activity of the seller;
• against remuneration;
• on the basis of a contract concluded (i) on business premises of the entrepreneur or (ii) outside of business premises of the entrepreneur (note that no reference to distance sale is made).
1.1. contract concluded on the business premises of the entrepreneur
For the purpose of defining of consumer sales, the Draft refers to Law on consumer rights. The latter provides that a contract concluded on the business premises of the entrepreneur is a contract concluded in a spot:
a) being a part of real property or real estate, where the entrepreneur operates on a permanent basis,
b) being a movable property, where the entrepreneur operates habitually or on a permanent basis.
1.2. contract concluded outside of business premises of the entrepreneur
The contract is concluded outside of business premises of the entrepreneur when:
a) both parties conclude the contract being simultaneously present in a place other than business premises of the entrepreneur,
b) the seller accepts the offer that was made by the consumer while both parties were present in a place other than business premises of the entrepreneur,
c) immediately after individual and personal contact with consumer was established through simultaneous presence of parties in the spot other than business premises of the entrepreneur, the parties conclude the contract in the business premises of the entrepreneur or through the means of distance communication
e) parties conclude the contract during an excursion organized by the entrepreneur with the purpose of promotion and conclusion of contracts with consumers.
1.3. contracts concluded at a distance
The Draft does not refer to contracts concluded at a distance (distance sales), i.e. contracts concluded with consumers:
• with the use of a system organized for conclusion of contracts at a distance, and
• without the simultaneous physical presence of the parties, and
• with the exclusive use of one or more means of distance communication until the contract is concluded.
Bearing in mind the wording of the Draft and the explanations prepared by the Ministry of Finance, it is reasonable to assume that the sale of goods through an internet platform will not be subject to tax.
2. Sale of goods
The tax is levied on consumer sale of goods. It will not be levied on the provision of services. However, if the “sale of goods is accompanied by provision of services”, such sale would qualify for taxation. It is not clear how the sale of goods and/or its price, should be separated from the provision of services.
The following goods will generally not be subject to tax: energy, gas, water, solid fuels, gaseous carbohydrates, heating fuels and oils, medicines, goods sold within restaurant services.
3. Taxable base
The taxable base is the monthly revenue on consumer exceeding 17 million PLN.
The revenue is assessed on the basis of the turnover records on cash registers. If the taxpayer is not obliged to use cash registers, other applicable records should be used.
It must be noted that according to the Ministry of Finance no adjustments will be possible (e.g. in case the consumer later decides that he requires a VAT invoice). According to the tax authorities the same rule shall apply to any cases when a consumer receipt and VAT invoice is issued on the same sale.
4. Filing and payment obligations
The taxpayers who generate monthly revenues exceeding 17 million PLN are obliged to file tax declarations and pay the due tax.
The deadline for tax payment and submission of monthly declarations is the 25th day of the following month.