Presumption and due diligence in transfer pricing – tax consultations

On 5 March 2021, the Ministry of Finance opened tax consultations concerning a document entitled “Explanations of Transfer Prices No 4 – presumption and due diligence referred to in Art. 11o(1b) of the CIT Act and Art. 23za(1b) of the PIT Act.”.

On 1 January 2021, the income tax acts were expanded to include the obligation to prepare the local file for those taxpayers who enter into transactions with a related or non-related entity, where the beneficial owner of the amounts receivable is resident, has a registered office or management in a territory or a country which uses harmful tax competition practices.

This obligation relies on a presumption that the beneficial owner of the amounts receivable is an entity from a tax haven if our counterparty engages in transactions with entities from tax haven in the financial year concerned. The status of the beneficial owner should be investigated in observance of due diligence.

Both concepts raise concerns among taxpayers and justified doubts as to the scope of applicability of the regulation. The draft explanations made available for consultations (available here) seem not to solve the basic problems (regarding e.g. situations where the taxpayer’s counterparties, which are related or non-related enterprises, are not willing to share any information regarding settlements with entities based in tax havens). What seems obvious for the Ministry (i.e. cooperation of counterparties in this regard) will be an enormous challenge for a number of taxpayers.

For more information about the draft explanations see here.

Therefore it is recommended that opinions, requests and comments to the draft be submitted, including detailed reasons to support them. This should be done by 20 April 2021 electronically to: Pointing out the practical problems triggered by the regulations may force the Ministry of Finance to change their approach to them.


We would like to remind you that in 2021, the Polish taxpayers are going to face a number of transfer pricing novelties (some of them were described in one of our previous publications).

The greatest challenges to be faced this year are:

  • the impact of COVID-19 on transactions concluded between associated enterprises,
  • the requirement to update comparative analyses (especially if the last ones were made for 2017)
  • new requirements for documenting transactions with entities from tax havens,
  • changes to TPR.

Even though the deadlines are likely to be extended, please remember that compliance with the transfer pricing obligations can be very time-consuming and should not be postponed until the last moment, so …


 The Andersen Transfer Pricing Team have substantial experience preparing transfer pricing documentation and comparative analyses, development and verification of transfer pricing policies and procedures, as well as preparing models of settlements between associated enterprises.

Should you have any questions or doubts regarding the issues discussed here, we are ready to assist you.



Michał Wilk Partner, Katowice

T: +48 32 731 68 69
M: +48 500 023 685

Arkadiusz Żurawicki Partner, Warsaw

T: +48 22 690 08 71
M: +48 508 092 989

Szymon Chyra Manager | Tax advisor, Katowice

T: +48 32 731 68 50