The description of the service is enough to issue a tax interpretation. The tax office may not require the taxpayer to specify and provide the PKWiU number and make the answer dependent on this. Such conclusions result from the judgment of the Supreme Administrative Court of 19 February 2021 (reference number II FSK 2441/20).
The judgment concerned the interpretation of Art. 15e paragraph. 1 point 1 of the Corporate Income Tax Act, regarding the exclusion of certain expenses from tax deductible costs. Pursuant to this provision, the taxpayers described therein are obliged to exclude from tax deductible costs the costs of advisory services, market research, advertising services, management and control, data processing, insurance, guarantees and sureties, and similar benefits. This provision does not refer to the statistical classification, but specifies in words the expenditure on services subject to limitation. Therefore, the interpretative body may not make the issuance of a tax interpretation conditional on the applicant’s determination of the PKWiU numbers for services. The Supreme Administrative Court rightly pointed out that, in the course of requesting supplementing the formal deficiencies of the application for an individual interpretation, the tax authority may demand that it be supplemented only with elements without which it is impossible to assess whether the position presented in the application and the legal assessment presented by the applicant are correct or not. .
In order to issue a tax interpretation, the regulations require a precise presentation of the facts. Whether it has been presented comprehensively is determined by the content of the provision, and not by the free assessment of the authority, therefore, in the above-mentioned case, the request from the taxpayer to provide the classification was unjustified. In other situations, the request may be justified, because tax law regulations often refer to the PKWiU classification or other classification, such as the Polish Classification of Activities (PKD), or to the Combined Nomenclature (CN). In such a situation, the classification becomes an element of tax law, and thus, the taxpayer, when applying for an individual interpretation, should provide such a classification.
Unfortunately, despite this, the interpretative bodies still avoid the substantive assessment of the case for issuing a tax interpretation by unjustified demands made against the applicants. The taxpayer falls into a trap in some way – providing the information indicated by the authority may lead to the issuance of a tax interpretation that does not provide protection. The more important it is to use professional attorneys in the course of such proceedings.