The concept of import tax

According to Article 2, point 7 of the Polish Value Added Tax Act of 11 March 2004, the import of goods should be understood as “the import of goods from a third country into the territory of the European Union.” Generally speaking, import taxes are charged by the customs authority of a given country or region for shipments originating abroad. However, this does not mean that a fee must be paid for every international shipment. Many countries and organizations (primarily the European Union) apply de minimis threshold. This is the minimum order value, determined in a given country, below which import taxes are not charged. For example, in the European Union, pursuant to Article 23, paragraph 1 of Regulation 1186/2009 establishing a Community system of customs duty reliefs, shipments from third countries containing goods of negligible value are exempt from customs duties. According to Article 23, paragraph 2 of that regulation, these goods do not exceed a value of EUR 150 per shipment.

Import tax on works of art in Poland

In our country, from January 1, 1994, to December 31, 1998, the Act of November 25, 1993, on Import Tax on Goods Imported or Shipped from Abroad, was in force. According to Article 5 of this Act, the tax base was the customs value of the goods, increased by the customs duty due, and the tax rate was to be 5% of the tax base; later, this value was reduced to 3%.

Currently, a special import tax applies in Poland to works of art, among other items. Pursuant to Article 120, Section 2 of the Value Added Tax Act (VAT Act), a reduced VAT rate of 7% applies to works of art. Article 120, Section 1, Item 1 of this Act defines works of art in this context as:

a) paintings, collages and similar decorative plaques, drawings and pastels, executed entirely by the artist, excluding plans and drawings for architectural, engineering, industrial, commercial, topographical or similar purposes, hand-decorated artistic craft products, painted fabrics for theatrical scenery, for the decoration of artists’ studios or for similar uses (CN 9701),

b) original engravings, prints and lithographs, produced in limited numbers, in black and white or colour, composed of one or more sheets, executed entirely by the artist, regardless of the process or material used, excluding any mechanical or photomechanical processes (CN 9702),

c) original sculptures and statues in any material, provided they were made entirely by the artist; sculpture casts, the number of which is limited to 8 copies and the execution was supervised by the artist or his heirs (CN 9703),

d) tapestries and wall hangings made by hand based on original designs provided by the artist, provided that their number is limited to 8 copies,

e) photographs taken by the artist, published by him or under his supervision, signed and numbered, limited to 30 copies in all sizes and frames.

In this way, the concept of works of art is distinguished from the concepts of collectors’ items, antiques and used goods, described in the following paragraphs.

However, the Act on Value Added Tax provides for an exception, as pursuant to Article 120, paragraph 4 of the VAT Act, a tax rate of 22% applies to works of art acquired by a given person with the intention of reselling them as part of their business activity.

Major changes to the import tax on works of art have also been introduced from 2025. Previously, it was possible to apply general rules or the so-called “margin procedure,” under which the difference between the sale amount and the purchase amount, reduced by the amount of tax due, was subject to taxation. These changes were already introduced by the Act of November 8, 2024, amending the Act on Value Added Tax and certain other acts implementing the provisions of Article 317 of EU Directive 2006/112/EC on the common system of value added tax and Directive 2022/542 amending it.

The changes will apply to cases where a taxpayer personally imported these goods or acquired works of art from their creators or their legal successors, or from taxpayers who do not use the margin scheme (Article 120, Section 17 of the VAT Act). In such cases, the margin scheme may only be applied if a reduced rate was not applied to the import or delivery of the works of art.

Also, Article 120, paragraph 15 of this Act introduces the requirement of appropriate records (in accordance with Article 109, paragraph 3) in the event that, in addition to the procedures described in Article 120, paragraphs 4 and 5, the taxpayer also applies general taxation principles; these records should include, among other things, the amount of the purchase of goods necessary to determine the amount of the margin.

It should also be remembered that under Article 120, Section 14 of the VAT Act, a taxpayer may also apply general provisions on taxation to used items, in which case the person will be able to deduct the amount of input tax on these goods for the period in which the taxpayer’s tax liability arose for the supply of these goods.

Judgments and interpretations

According to ruling VIII SA/ Wa 712/22, if goods have already been subject to value added tax upon sale to a consumer who did not benefit from the VAT deduction in the price paid, the subsequent resale of these goods as used may be subject to VAT only to the extent that the taxpayer trades in the acquired goods and generates income from them. Only the VAT taxpayer’s reporting of such turnover, when they acquired used goods on which they were unable to deduct the VAT charged by the seller, entitles the taxpayer to VAT on the margin, which is the difference between the price paid upon purchase of the used goods and the price acquired for the purpose of selling them for consideration to obtain a margin as part of the remuneration for the service.

Under this ruling, the application of Article 120 paragraphs 4 and 10 of the VAT Act (taxation of margins) is not dependent on whether the seller is a taxpayer referred to in Article 15 or whether they are a taxpayer of value added tax. Even if they are such a taxpayer, it is still possible to tax the sales margin on goods purchased from such an entity under the VAT system. According to the court, it is sufficient here that the material conditions listed in the VAT Act are met: the supply concerned tax-exempt activities (after meeting certain conditions) or the supply of goods was tax-exempt to an entrepreneur whose sales value did not exceed PLN 200,000 in either the previous or the current tax year (excluding tax, Article 43 paragraph 1 item 2 and Article 113 of the VAT Act). Moreover, if a domestic buyer purchases goods from an entity that is not a VAT payer, they are not required to have documents confirming the purchase of goods for which the tax base was the margin, which is the difference between the sales amount and the purchase amount, reduced by the amount of tax (Article 120, paragraphs 4 and 5 of the VAT Act). According to the court, it is sufficient to meet the material conditions listed in the VAT Act: the supply concerned tax-exempt activities (after meeting certain conditions) or the supply of goods was tax-exempt to an entrepreneur whose sales value did not exceed PLN 200,000 in either the previous or current tax year (excluding tax, Article 43, paragraph 1, item 2 and Article 113 of the VAT Act). Moreover, if a domestic buyer purchases goods from an entity that is not a VAT payer, he is not obliged to have documents confirming the acquisition of goods for which the tax base was the margin, which was the difference between the sales amount and the purchase amount, reduced by the amount of tax.

Further, in judgment III SA/ Wa 2236/13, the Court agreed with the Director of the Customs Chamber’s argument that the historic coins are collectors’ items because they are not typically used as a means of payment. These coins were issued in small quantities, and the mere fact that they may constitute legal tender does not mean that they are typically used as such. Therefore, these coins are collectors’ items and are not subject to tax exemption under Article 45 paragraph 1 item 8 of the VAT Act. As already mentioned, the Court agreed with this interpretation, but stated that classifying these coins as collectors’ items would also affect the application of Article 120 paragraph 2, and therefore the reduced rate specified in that provision should apply.

The issue of the provisions of Article 120 of the VAT Act is also addressed in Resolution OG/005/177/PP2/443/60/2005 of the Head of the First Tax Office in Kielce dated December 2, 2005. The applicant inquired whether the supply of works of art he had created would be subject to the 7% VAT rate. At the same time, he conducted business activity in the field of advertising services, and for the previous month, he had also run a gallery where he supplied works of art, including those he himself created. The Head agreed with this position, citing Article 120, paragraph 3, item 1, letter a of the VAT Act, according to which: “The 7% tax rate shall also apply to: the supply of works of art by their creator or the creator’s heir (…).”

The problem of understanding the term “artist”, used in art. 120 sec. 1 item 1a of the VAT Act, also in relation to art. 120 sec. 2, was raised in the individual interpretation of 31 December 2008 issued by the Director of the Tax Chamber in Warsaw, reference number IPPP2/443-1597/08-2/KK. The question here, for the purposes of applying the 7% rate to imports, was: “Should the term “artist”, which appears in sec. 1 item 1a of art. 120 of the Goods and Services Tax Act, be understood in the same way as it functions in everyday language, or should the author of a painting, in order to be an artist within the meaning of the Act, meet other conditions, e.g. present some documentation certifying being an artist”? This is related to art. 68 a) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, as amended ), under which customs authorities, in order to verify the accuracy of the data contained in a customs declaration, have the right to request the declarant to present documents other than those annexed to the customs declaration. The Director of the Tax Chamber stated here that all definitions contained in paragraph 1 were created solely for the purposes of chapter 4. He did not agree with the applicant’s point of view that the term “artist” should be understood in its colloquial meaning. Finally, the director stated that the applicant company will have the right to apply the 7% value added tax rate upon import of works of art referred to in Art. 120 paragraph 1 item 1 lit. a of the VAT Act, provided that they are classified under the symbol of the Polish Classification of Products and Services PKWiU 92.31.10-00.1 or PCN 9701 or CN 9701 codes.

Summary

In summary, the current import tax levied on works of art is an exception to the standard VAT rate in Poland. A reduced rate of 7% is applied. Polish regulations in this area, primarily the Value Added Tax Act, are also being aligned with EU regulations, for example, those regarding the “margin procedure.” Given that the aforementioned Act of November 8, 2024, expired on January 26, 2026, it is possible that changes in this regard will occur after that date. However, no specific draft legislation has been prepared at this time.

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#EURegulations
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Artykuł Import tax and works of art in Poland pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

What is the place of delivery/place of performance?

Article 5, paragraph 1 of the VAT Act

The following are subject to value added tax (VAT):

1) paid supply of goods and paid provision of services within the territory of the country;

2) export of goods;

3) import of goods within the territory of the country;

4) intra-Community acquisition of goods for remuneration within the territory of the country; 5) intra-Community supply of goods.

The territory of a country means the territory of Poland. A transaction is subject to Polish VAT if it takes place within Poland. Exports and intra-Community supplies of goods include the place of taxation in their definition; these are ordinary goods transactions, occurring only when the goods leave Poland.

The place of delivery is understood as the country where a transaction subject to VAT is subject to VAT, as it is the national regulations that determine its taxability. The physical (actual) performance of the transaction or the place designated by local civil law are irrelevant.

Place of delivery rules apply within the EU, but not outside it. It is important to check the relevant rules in non-EU countries. It may turn out that the transaction will not be taxed at all or that double taxation will occur – although such situations should not generally occur, they can theoretically occur.

• Why is it important and why does it matter not only to the seller?

It indicates where international transactions should be taxed and settled accordingly. Sometimes, the buyer is responsible for settling the transaction.

Place of delivery of goods – Article 22 of the Act of 11 March 2004 on tax on goods and services

• “Normal” and “extraordinary” deliveries with shipping
• “Ordinary” delivery of goods

The place of delivery of goods is, in the case of goods dispatched or transported by the person delivering them, their purchaser or a third party, the place where the goods are located at the time when dispatch or transport to the purchaser begins.

Where the place of departure of the dispatch or transport of goods is the territory of a third country, the supply of goods made by a taxable person or a taxable person for value added tax who is also a taxable person in respect of the import or import of these goods shall be deemed to have been made in the territory of the Member State of import or import of these goods .

• An “unusual” delivery of goods

STOPS (Intra-Community Distance Sales of Goods) – the place of delivery of goods is the place where the goods are located at the time of completion of dispatch or transport to the buyer.

SOTI (distance selling of goods imported from third countries) – the place of delivery is in the case of:

1b) distance sales of goods imported into the territory of a Member State other than the territory of the Member State in which dispatch or transport of the goods to the buyer ends – the place where the goods are located at the time when dispatch or transport to the buyer ends;

1c) distance sales of goods imported into the territory of the Member State where dispatch or transport of the goods to the purchaser ends – the territory of that Member State, provided that the tax or value added tax on the supply of those goods is to be declared under the special scheme referred to in Chapter 9 of Section XII, or under rules corresponding to those regulations;

• Deliveries without shipping

The place of delivery of goods is, in the case of goods not dispatched or transported, the place where the goods are located at the time of delivery;

• Deliveries with assembly

In the case of goods that are installed or assembled, with or without a trial run, by the supplier or by an entity acting on his behalf, the place of delivery of goods is the place where the goods are installed or assembled ; simple operations enabling the assembled or installed goods to function in accordance with their intended purpose are not considered installation or assembly;

• Energy and gas supply

The place of delivery of goods is in the case of:

• the supply of gas in the gas system, electricity in the electricity system, heat or cooling energy through heat or cooling distribution networks to an entity that is a taxable person who independently carries out an economic activity referred to in Article 15 paragraph 2, or an economic activity corresponding to such activity, regardless of the purpose or results of such activity, taking into account Article 15 paragraph 6, whose main purpose of purchasing gas, electricity, heat or cooling energy is the resale of these goods in such distribution systems or networks and whose own consumption of such goods is insignificant – the place where such an entity has its registered office , and in the case of having a fixed establishment to which these goods are supplied – the place where this entity has a fixed establishment , and in the absence of a registered office or fixed establishment – the place where it has its permanent address or usually resides;
• the supply of gas in the gas system, electricity in the electricity system, heat or cooling energy through heat or cooling distribution networks, if such supply is made to an entity other than the entity referred to in point 5 (above) – the place where the purchaser uses and consumes these goods; if all or part of these goods are not actually consumed by the purchaser, unused goods are deemed to be used and consumed at the place where the purchaser has its registered office, and in the case of having a fixed place of business to which these goods are delivered – the place where the purchaser has a fixed place of business, and in the absence of a registered office or fixed place of business – the place where the purchaser has his permanent address or usual place of residence.

• Export and import of goods

In the case of goods that are dispatched or transported from the territory of a country outside the EU by a buyer who also delivers them, it is assumed that the dispatch or transport is assigned to the delivery made to that buyer, unless the delivery terms state that the dispatch or transport of the goods should be assigned to his delivery.

• Chain transactions

Art. 22 sec. 2. If the same goods are the subject of subsequent deliveries and are dispatched or transported directly from the first supplier to the last buyer, the dispatch or transport is attributed to only one delivery.

Figure 1. Place of supply of goods and services in VAT, prepared by Wolters Kluwer

A delivery with shipping is assigned to invoice 2; it is a mobile delivery; the UK is outside the EU – only one invoice can have a 0% rate. All invoices prior to the delivery are treated as standard domestic deliveries (subject to standard Polish VAT). Invoices issued after the mobile delivery are transactions treated as domestic deliveries in the country where the goods arrived (standard delivery outside the country is not subject to Polish VAT). Formally, a delivery, if the goods neither left nor arrived in Poland, will never be subject to Polish VAT.

Art. 22 paragraph 2b. In the case of goods referred to in paragraph 2, which are dispatched or transported from the territory of one Member State to the territory of another Member State, the dispatch or transport of these goods shall be attributed exclusively to the delivery made to the intermediary entity.

2c. Where the intermediary operator has communicated to his supplier the identification number for intra-Community transactions issued to him by the Member State from which the goods are dispatched or transported, the dispatch or transport shall be attributed solely to the supply made by that operator.

2d. The intermediary referred to in paragraphs 2b and 2c shall be understood as a supplier of goods other than the first in line, who sends or transports the goods himself or through a third party acting on his behalf.

2e. In the case of goods referred to in paragraph 2, which are dispatched or transported from the territory of the country to the territory of a third country or from the territory of one Member State to the territory of another Member State by:

1) first supplier – shipment or transport is attributed to his delivery;

2) the last buyer – the shipment or transport is assigned to the delivery made to this buyer.

• intra-Community acquisition of goods

The intra-Community acquisition of goods is deemed to have taken place in the territory of the Member State in which the goods are located at the time when their dispatch or transport ends.

If the purchaser has provided an identification number for intra-Community transactions allocated to him by a Member State other than the Member State in which the goods are located at the time when their dispatch or transport ends, the intra-Community transactions are deemed to have been made also in the territory of that Member State, unless the purchaser proves that the intra-Community transactions:

1) was taxed in the territory of the Member State in which the goods are located at the time when their dispatch or transport ends, or

2) was deemed to be taxed in the territory of the Member State in which the goods are located at the time when their dispatch or transport ends, due to the application of the simplified procedure for intra-Community triangular transactions referred to in Section XII.

• Place of import of goods

Art. 26a. 1. The place of importation of goods is the territory of the Member State in which the goods are located at the time of their entry into the territory of the European Union.

2. Where the goods are placed under one of the following procedures upon their entry into the territory of the European Union:

1) inward processing,

2) temporary importation with full exemption from import duties,

3) customs warehousing,

4) transit, including temporary storage before the goods are placed under one of the customs procedures,

5) free zone

– the place of import of such goods is the territory of the Member State where the goods cease to be subject to these procedures.

• IDT and export of goods

As mentioned above, the place of taxation for intra-Community supplies of goods and exports of goods is Poland.

1. Place of supply of services
2. General rules for determining the place of taxation of B2B and B2C
   1. B2B – taxpayer – taxpayer (Article 28b)

The place of supply of services in the case of services provided to a taxpayer is the place where the taxpayer-service recipient has its registered office.

Reverse charge – if the buyer is from the European Union, it is assumed that he will settle the VAT.

If the services are provided for a fixed place of business of the taxpayer which is located in a place other than the place where the taxpayer has its registered office, the place of supply of these services is the fixed place of business.

If the taxpayer who is the recipient of the services does not have a registered office or a permanent place of business as referred to in paragraph 2, the place of supply of services is the place where he has his permanent place of residence or usual place of residence.

In the case of the provision of services intended exclusively for the personal purposes of the taxpayer or its employees, including former employees, partners, shareholders, stockholders, members of a cooperative and their household members, members of the decision-making bodies of legal persons or members of an association, the provisions of Article 28c (general B2C rule) shall apply accordingly to determine the place of supply.

The judgment of the CJEU of 7 April 2022 in case C-333/20:

Article 44 of Directive 2006/112 on the common system of value added tax, should be interpreted as meaning that a company established in one Member State does not have a fixed establishment in another Member State because it has a subsidiary there which, under contracts, provides it with technical and human resources through which it provides, on an exclusive basis, marketing, regulatory, advertising and representation services that may have a direct impact on the volume of sales.

• B2C – taxpayer – non-taxpayer (Article 28c)

The place of supply of services to non-taxable entities is the place where the service provider has its registered office.

Where services are provided from a fixed place of business of the service provider located in a place other than his registered office, the place of supply of these services is the fixed place of business.

If the service provider does not have a registered office or a permanent place of business as referred to in paragraph 2, the place of supply of services is the place where he has his permanent place of residence or usual place of residence.

The VAT Act does not define the concepts of business establishment and permanent establishment. Their definitions are found in EU Regulation 282/2011.

The place of business of a taxpayer is the place where the functions of the company’s management are performed. To determine this place, the place where important decisions regarding the general management of the company are made, the address of the company’s registered office, and the place of company board meetings are taken into account. If these criteria do not allow for the determination of the place of business of the taxpayer with complete certainty, the decisive criterion is the place where important decisions regarding the general management of the company are made (Article 10 of the Regulation).

A fixed establishment is any location (other than the taxpayer’s registered office) that is sufficiently permanent and has an appropriate structure, in terms of personnel and technical resources, to enable the taxpayer to receive and use services provided for the taxpayer’s own needs. The fact of having a VAT identification number is not, in itself, sufficient to consider a taxpayer to have a fixed establishment (Article 11 of the Regulation).

• Real estate services

Art. 28e. The place of supply of services related to real estate, including services provided by appraisers, real estate agents, accommodation services in hotels or facilities with a similar function, such as holiday resorts or places intended for use as camping sites, the use and enjoyment of real estate, and services related to the preparation and coordination of construction works, such as the services of architects and construction supervision, is the place where the real estate is located.

The catalogue listed in this article is an open catalogue, the categories of services listed therein are examples.

Pursuant to Article 31a of Regulation 282/2011, services connected with immovable property referred to in Article 47 of Directive 2006/112/EC cover only those services which have a sufficiently direct link with the immovable property in question. Services are deemed to have a sufficiently direct link with the immovable property in the following cases:

a) when they originate from real estate, and the real estate in question constitutes a component of the service and is a central and indispensable element from the point of view of the services provided;

b) when they are provided in relation to real estate or intended for it and are intended to change the legal or physical status of a given property.[1]

According to the above-mentioned regulation, the following cannot be considered as benefits related to real estate:

• preparation of plans for a building or part thereof, if they are not intended for a specific plot of land;
• providing advertising services, even if it involves the use of real estate. For example, in the individual interpretation of the Director of the Tax Chamber in Warsaw of 20 May 2014, IPPP3/443-190/14-2/KC, it was deemed that placing vinyl mesh on a building facade is a service taxed under general rules, i.e. as advertising services, not rental services;
• legal services related to contracts, including advice on the terms of an agreement relating to the transfer of real estate or the enforcement of such an agreement or proving the existence of such an agreement, where such services do not relate to the transfer of title to real estate.

• Transport of goods and transport of passengers (Article 28f)
• goods (28f section 1a)

Place of supply of goods transport services to the taxpayer:

• who has a registered office or permanent place of business in the territory of the country for which these services are provided, and in the absence of such a registered office or permanent place of business, who has a permanent place of residence or habitual residence in the territory of the country, if the transport is performed entirely outside the territory of the European Union, is a territory located outside the territory of the European Union;
• having a registered office of business in the territory of a third country , a permanent place of business for which these services are provided, and in the absence of such a registered office of business or a permanent place of business, having a permanent place of residence or habitual residence in the territory of a third country , if the transport is performed entirely within the territory of the country, is the territory of the country.

• passengers (Article 28f paragraph 1)

of passenger transport services is the place where the transport takes place, taking into account the distances covered.

• Participation in fairs, conferences or events (Article 28g)
• The place of supply of services related to admission to cultural, artistic, sporting, scientific, educational, entertainment or similar events , such as fairs and exhibitions, and of ancillary services related to admission to these events, provided to the taxpayer, where attendance at them is not virtual, is the place where these events actually take place.
• The place of supply of services in the field of culture, art, sports, science, education, entertainment and similar services , such as fairs and exhibitions, as well as ancillary services to these services, including the supply of services by service organisers in these fields, provided to non-taxable entities, is the place where the activity is actually performed.

[1]J. Matarewicz [in:] Act on Goods and Services Tax. Updated commentary, LEX/el. 2025, art. 28(e).

Artykuł Place of delivery of goods and services in VAT – Polish and EU rules pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

Recently, administrative courts have been considering the possibility of imposing VAT obligations on individuals and companies providing services via the SaaS model. This article provides an analysis of the nature of the SaaS model, its advantages and disadvantages, the legal obligations associated with it for both users and service providers and the latest administrative court case law related to this model.

THE ESSENCE OF THE SOFTWARE AS A SERVICE MODEL:

The SaaS (Software as a Service) model involves the service provider providing services via a cloud computing platform. The idea is for the service provider to fully control access to such a platform, while also allowing remote interaction and editing of the platform, and for platform editing to occur almost instantly for users (so-called merchants). The principle of operation (similar to the general principles of cloud computing) is to grant the service provider exclusive access to the server and allow users to use it without having to install applications, software, download updates, etc. Typically, customers using such platforms pay a fixed fee, called a subscription, for a given period of time, which is a fixed expense. By paying a subscription, users gain access to the full set of tools they need to receive the benefits of the service provided in this model without having to purchase a license, install special software, etc. In short, it is a ready-to-use platform after paying the agreed-upon subscription fee, as it is created and made available based on the principles of cloud computing.

This model has its pros and cons. Among the advantages of this service model is increased copyright protection, as the server host has full control over who shares the software. Another benefit of this model is the ability to immediately implement software changes and updates, as well as their equally rapid implementation for users without the need for lengthy installation processes and software compatibility (reconciliation) with these changes. Furthermore, through the intermediary of cloud computing, virtually anyone in the world, from anywhere in the world, can use it – universal access. From the user’s perspective, another advantage of this solution is the lack of the need to purchase appropriate hardware to use such services or hire a new person for such tasks, as well as immediate access without wasting time on the extensions associated with the previously mentioned installation process.

However, there are also several drawbacks to this solution. Examples include the need for internet access, companies’ compliance with data protection and compliance regulations , the inability to customize the service to individual beneficiaries, and difficulties with later transferring the platform to another service provider.

Examples of using this model in everyday life include Microsoft Outlook, Google Drive, Shopify , Discord and Gmail .

SAAS MODEL IN THE COPYRIGHT ASPECT FROM THE POINT OF VIEW OF PROTECTION OF COMPUTER PROGRAMS:

From copyright protection perspective, this service provision concept undoubtedly involves a computer program, understood as a set of instructions written in a given programming language and intended for execution by a computer. In the Polish copyright system, computer programs are specifically protected under Chapter 7 – “Special Provisions Regarding Computer Programs” of the Copyright and Related Rights Act. These provisions specify activities related to computer programs that require the creator’s consent, as well as exemptions from the requirement to obtain such consent. It should be noted, however, that these provisions do not apply to the SaaS model . The creator must always provide access to the service (even if consent is not required in a given situation), which constitutes consent to its use. After all, the provider’s consent to use the platform for a subscription fee must be part of the agreement, and even a condition of its execution (making the platform available to the beneficiary).

SAAS MODEL IN THE FRAMEWORK OF TAX LAW AND TAX LIABILITIES IN CONNECTION WITH GOODS AND SERVICES TAX – LEGAL FRAMEWORK:

A potential taxpayer providing services using the SaaS model could face a taxation issue in this situation. To gain some insight into this area, it should be noted that Article 7a of the Value Added Tax Act (resulting from the implementation into the Polish legal system of Directive 2006/112/EC on the common system of value added tax) and Article 5b of Implementing Regulation 282/2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax may be related to this type of activity. Article 7a of the Polish Act regulates the activity of “facilitating” (a concept within the meaning of Article 5b of Regulation 282/2011) the delivery of goods, within the meaning of Article 7 of the Act, via an “electronic interface”. Therefore, the key concepts in this case are “delivery“, “facilitation“, and “electronic interface“.

Under Article 7 of the Value Added Tax Act, delivery should be understood as a transfer of the right to dispose of an item as an owner. The remainder of the provision includes activities that extend the meaning of “delivery”. Every delivery of goods is subject to taxation under Article 5 of the Act.

Next, we need to decipher the concept of “facilitation”. The key element in analyzing this concept will be Article 5b of Implementing Regulation 282/2011. Under this EU law, this refers to any activity via an electronic interface intended to facilitate contact between the buyer and the supplier of goods and to effect their delivery. The provision also includes exclusions for certain activities from the scope of this legal definition. These exclusions indicate that “intermediation” is not considered facilitation within the meaning of the regulation if the taxpayer does not specify any delivery terms, is not involved in approving the payment for the delivery of goods to the buyer, and is not involved in the ordering and delivery process (directly or indirectly).

The term “electronic interface” should be understood as any software used to establish contact between a buyer and a seller (supplier). Furthermore, as indicated in the literature, this term should be interpreted broadly, and the list of examples of this expression is merely exemplary.

Therefore, it should be considered that the provision of services using the SaaS model is subject to value added tax. This constitutes facilitation within the meaning of the regulation (of course, in the absence of any exclusionary circumstances contained in the above-mentioned provisions) via an electronic interface. In the SaaS model, this can be used, for example, to enable the opening of an online store (the Shopify platform is an ideal model for this mode of operation ).

PROVIDING SERVICES IN THE SAAS MODEL AND TAXATION WITH GOODS AND SERVICES TAX IN THE LIGHT OF THE LATEST CASE LAW:

The provision of services in the Software as a Service model was the subject of recent considerations of the Provincial Administrative Court in Szczecin (ref. ISA/ Sz 269/22).

Briefly summarizing the facts, a joint-stock company submitted an application to the Director of the National Tax Information Office for an individual interpretation of a future event regarding its inability to be recognized as a VAT payer within the meaning of Article 7a, Sections 1-2 of the Value Added Tax Act. The company argued that it engaged in the aforementioned activity characteristic of providing services in a SaaS model, namely providing a platform to potential online store owners (this is one of the main types of activity in the SaaS model, which is why the provisions mentioned above were referred to as the “VAT-e-commerce package” or VAT-SaaS). However, online store owners and buyers of their products act in their own name and on their own account. The platform, constructed by the company, was solely intended to enable merchants to present their products to potential buyers, enable buyers to purchase goods, and enable payment for the goods. Furthermore, the store owners were to operate under their own new internet domain, either created specifically for the store or already used at an earlier stage of their business. Each party to sales agreements concluded via the electronic interface was to act on its own account and in its own name, and in accordance with the internal regulations of the given online store. Therefore, the company was not intended to handle any operational or financial aspects of the merchants’ businesses. The only additional activity not mentioned above was purely educational in nature, as the interface operator posted educational and training materials.

The conclusion from the facts of the case is that the company argued that it does not manage stores created by merchants and that they act on their own behalf, while the platform operator itself only facilitates the creation of specific e-commerce hubs. According to the applicant, it should not be considered a VAT payer for this activity due to a functional interpretation of EU regulations, as the intention of the EU and national legislature was not to tax e-commerce software providers, but only the operators of the electronic interface enabling the merchant to establish contact with the purchaser of their product, resulting in the delivery of goods.

The Director of the National Tax Information Service (KIS) disagreed with the applicant’s position and noted that its interpretation of these provisions was incorrect and inconsistent with applicable law, a decision the company appealed to the Provincial Administrative Court in Szczecin. According to the authority, the case at hand involved a transfer of the obligation to settle value added tax (VAT) to the entity providing the electronic interface, within the meaning of Article 7a of the Value Added Tax Act. Furthermore, the Director of the KIS noted that the legal fiction established by this provision applies to the applicant, regardless of the alleged circumstances regarding internal store regulations and sales between merchants and buyers, which in no way involve the company or its involvement in this venture. The company reiterated that its role is solely to provide appropriate IT support for the merchants’ business operations and that it does not directly or indirectly participate in the trade between the supplier and the final purchaser of the product. However, the complainant’s main argument was that the interface itself does not enable contact between the buyer and the merchant , as the merchant must first set up and design a store on the platform before any contact between them and the conclusion of a purchase and sale agreement can even be considered. In response to the complaint, the Director of the National Tax Information (KIS) requested its dismissal.

The Regional Administrative Court in Szczecin shared the contested position of the authority, noting that “It is impossible to (…) agree with the complainant’s position that the nature of its business activity – the supply of software and server space – excludes it from being considered an operator of an electronic interface facilitating the delivery of goods. On the contrary, the nature of its activity consisting in the implementation and development of online stores determines the necessity of recognizing it as an operator of an electronic interface. (…) It is therefore impossible to accept the company’s position that it does not participate in the process of ordering goods sold via an electronic interface.” Further on in the legal justification for dismissing the complaint’s allegations, one can read a rather important point that the Regional Administrative Court included therein, namely that the provisions of Article 7a of the Value Added Tax Act do not only cover “giants” of the SaaS model, such as Amazon, but also smaller entities that even indirectly facilitate the exchange of goods by simply providing an electronic interface, and that not only direct but also indirect facilitation should always be taken into account (which it considered the provision of a tool for creating an online store to be).

Finally, it is worth mentioning that the company appealed the Supreme Administrative Court’s ruling in cassation, but it appears the Supreme Administrative Court supported the Director of the National Tax Information System’s position and upheld the Provincial Administrative Court’s ruling. Unfortunately, we can only conclude this from the published ruling, as the justification is not included in the ruling’s publication in the Supreme Administrative Court’s Rulings Database (reference number I FSK 1539/22). This is likely due to the fact that the ruling is very recent – it was issued on October 1, 2025.

Artykuł SOFTWARE AS A SERVICE MODEL – LEGAL ASPECTS AND TAX ISSUES – Delivery, facilitation and electronic interface from the point of view of tax authorities pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.