The certificate of tax residence constitutes a document to which the tax legislation attaches significant legal consequences. Indeed, the document in question confirms the tax residence of the taxpayer, and thus determines in which country the taxpayer is subject to unlimited tax liability.
1. Document indicating tax residence
A tax residence certificate is a document attesting the taxpayer’s tax residence. This is confirmed by definitions which can be found in Polish tax legislation. Indeed, pursuant to Article 5a, point 21, of the Personal Income Tax Act of 26 July 1991 (i.e. Official Journal of 2024, item 226, as amended), hereinafter referred to as the PIT Act, a certificate of residence constitutes an attestation stating the taxpayer’s place of residence for tax purposes issued by a competent tax administration authority of the taxpayer’s country of residence. The Corporate Income Tax Act of 15 February 1992 (i.e. OJ 2023, item 2805, as amended), hereinafter referred to as the CIT Act, provides that a certificate of residence is an attestation of the taxpayer’s place of the head office for tax purposes issued by the competent tax administration authority of the State where the taxpayer’s head office is located. It should be noted here that according to Polish tax legislation, Polish tax residence is held by natural persons having their place of residence in the Republic of Poland (Article 3(1, 1a) of the PIT Act) and by legal persons having their head office or management board in this country (Article 3(1, 1a) of the CIT Act).
The certificate of residence confirms the past and/or current state. It doesn’t concern the future.
2. Document
Unfortunately, there is no international template for the certificate of residence. Individual countries determine independently what the tax residence attestation should look like. Moreover, the document may have different name in various States. Therefore, it is assumed that the document constitutes an attestation of the taxpayer’s tax residence in a given country if it contains the following information:
- details of the foreign tax authority issuing the document;
- the name and address of the entity for which the document is issued;
- a certificate of the place of the head office or residential address of the entity for which the document is issued;
- the date of issue of the document;
- information concerning the period of validity of the certificate.
In Poland, the template of the tax residence certificate is specified in the Regulation of the Minister of Development and Finance of 28 June 2017 on the determination of the template of the attestation of residence or of the head office for tax purposes issued by tax authorities (OJ 2017, item 1315).
3. Certificate validity period
The tax residence certificate should indicate the period for which it is issued. However, it may happen that this period isn’t specified in the document. In such a case, the payer may take into account the certificate in question at the time of tax collection for the period of twelve consecutive months from the date of its issue (Article 41(9a) of the PIT Act, Article 1i of the CIT Act).
If, within a period of twelve months from the date of issue of the tax residence certificate, the taxpayer’s place of residence or place of the head office changes, the taxpayer is obliged to document the place of residence for tax purposes immediately with a new residence certificate (Article 41(9a) of the PIT Act, Article 26(1i) of the CIT Act).
4. Form of the certificate
The form of the certificate of residence issued by a foreign tax authority is determined by the internal provisions of this State. In practice, this means that if the provisions of a given country provide for the possibility of issuing a document certifying tax residence in both paper and electronic form, both forms of the document should be recognised by the Polish tax authorities. This view was confirmed by the Director of National Fiscal Information in the individual interpretation of 28 May 2018, No. 0114-KDIP2-1.4010.192.2018.1.JC. Indeed, he concluded that: ″ Pursuant to Article 194 § 1 of the General Tax Code, official documents prepared in the form specified by the provisions of law by public authorities appointed for that purpose constitute evidence of what has been officially stated therein. Therefore, the official document will be such a certificate of residence that has been drawn up in the form provided for by the provisions of the law of a given country by the authority appointed for this purpose. Thus, if, in accordance with the legislation of a given country, it’s possible to obtain an attestation of the place of the head office for tax purposes (tax residence certificate) both in paper form and in electronic one, and both forms are issued by the appropriate tax authority of a given State and have an equivalent status under the law of this country, the Applicant as a payer will be entitled to recognise such a residence certificate in any of these forms. Then, such a certificate of residence in electronic form will be the basis for the payer to apply the provisions of the double taxation treaty. In conclusion, since two (or more) forms of issuing certificates of residence are allowed in the country of tax residence and each of them is equivalent (it has the same binding force), there are no grounds for the Polish tax authorities to recognise only one of these forms. Therefore, it can’t be assumed that the application of the regulations of double tax conventions in such a situation (or, more precisely, the non-collection of tax in accordance with the agreement) will be possible only and exclusively in the case of obtaining a paper version of the certificate. ″
5. Copy of the certificate of residence
The Polish legislator provides for the possibility of confirming tax residence by means of a copy of the certificate of residence. This is permissible only in the event that the information resulting from the submitted copy of the residence certificate doesn’t raise reasonable doubts as to its compliance with the facts (Article 41(9e) of the PIT Act, Article 26(1n) of the CIT Act).
6. How to apply for a certificate of residence in Poland?
In Poland, a tax residence certificate is issued upon request. It is an official CFR-1 form.
The applicant may submit the request in person or through a proxy. However, in the case of acting through a proxy, the application must be accompanied by a power of attorney document and proof of payment of the stamp duty on the power of attorney in the amount of PLN 17.00.
The tax office with jurisdiction over the taxpayer’s place of residence or of the head office is the authority competent to examine the application.
The application may be submitted in the following forms:
- paper – in such a case, the request can be made in person or sent by post,
- electronic – the application shall by sent as an attachment to a general letter in the e-Tax Office, or made via e-PUAP.
The applicant is required to pay a stamp duty in the amount of PLN 17.00 for a request submitted on paper or via e-PUAP. In such a case, proof of payment of the stamp duty or its certified copy must be attached to the request. Applications made via the e-Tax Office are free of charge.
The tax office should issue a certificate within 7 days from the date of making the application. It may also take a decision refusing to issue the certificate or that one leaving the request without any examination. The applicant may lodge a complaint against the above-mentioned decisions. The complaint shall be submitted to the Director of the Tax Chamber through the authority which refused to issue the certificate within 7 days from the date of the decision.
7. Legal notice
The study is a work within the meaning of the Act of 4 February 1994 on Copyright and Related Rights (OJ 2006, No. 90, item 631, consolidated text, as amended). Publishing or reproducing this study or its part, quoting opinions, as well as disseminating in any other way the information contained therein without the written consent of Crede sp. z o.o. is prohibited.
