The obligation to report MDRs has fallen mainly on taxpayers
It is confirmed by the thesis that taxpayers do not exempt their advisors, attorneys at law, etc. from professional secrecy and thus they themselves mainly submit information on tax schemes to the head of KAS - writes Dziennik Gazeta Prawna.
Piotr Kalemba, tax advisor and manager cooperating with Thedy & Partners, in a comment for the newspaper, pointed out that first of all, it should be remembered that the reporting obligation regarding tax schemes is a reporting obligation. Consequently, it may apply to, and in practice very often does apply to, events / transactions that occur as part of the day-to-day business of the beneficiaries. In this regard, these arrangements (e.g. relating to the payment of dividends or royalties) are usually carried out by the beneficiaries themselves without the involvement of promoters. Consequently, it is the beneficiaries who are directly obliged to provide the Head of KAS with MDR-1 information on the scheme.
However, there are also situations where a promoter is present but for some reasons the MDR-1 information on a scheme is submitted by a beneficiary.
– Cases of not releasing a promoter from professional secrecy are quite rare. Usually beneficiaries want to get rid of the unpleasant obligation of preparing and submitting MDR-1 information and they exempt promoters from professional secrecy. However, we should remember that imposing reporting obligations on professional attorneys raises considerable doubts in the context of the institution of professional secrecy. In addition, the provisions on tax schemes are very unclear and imprecise in many areas. Bearing this in mind, it is not surprising that at the request of the National Council of Tax Advisors, the Constitutional Tribunal will examine the constitutionality of these provisions (case ref. no. K 13/20),” Piotr Kalemba told DGP.
At the same time, he added that in the case where a promoter is not exempted from professional secrecy, this entity is obliged to e.g. provide the beneficiary with data concerning the scheme, which in practice usually means providing the beneficiary with a filled in MDR-1 form.
However, it should be emphasized that due to the deficiency of regulations in this area, also beneficiaries who executed the arrangement on their own (without promoter’s participation) often ask advisors for support in this area, i.e. analysis of the arrangement and preparation of a draft MDR-1 information.
The entire article was published in DGP of 10 June 2021, page B2