Real estate management activities owned by the State Treasury and an obligation to report MDR tax schemes

Abstract

The prevailing view in the judicature and doctrine is that reporting of tax schemes (the so-called MDR - Mandatory Disclosure Rules) belongs to anti-abusive regulations. This institution, binding in Polish legislation since 1 January 2019, is a partial transposition of the EU Directive. However, its subjective and objective scope, as adopted by the national legislator, is much broader. It also applies to the management of real estate of the State Treasury, which gives rise to controversy as to whether this was the legislator's objective. The hypotheses formulated in the article assume, firstly, that the specifics of non-executive activities of statio fisci and staroste (mayors of cities with county rights) have not been taken into account in the new regulations and tax explanations, which poses certain practical problems. For instance, what is a tax scheme (reportable arrangement) in a private enterprise does not have to be a tax scheme in a statio fisci managing State Treasury property within dominium. Secondly, de lege lata regulations on reporting tax schemes, in relation to the State Treasury real estate, should be applied with great caution. Thirdly, de lege ferenda the legislator should specify the governing regulation. The research material used in the presented argumentation includes substantive law, doctrine and practice, which, however, is still to be shaped in the future.