STOP

88 • Fifty Shades of Tax Dodging
The second shortcoming noted by the review is in relation to
bearer shares where the review notes “serious legal gaps”
and lack of ownership information. 964 The last problem
identified is in relation to trusts. While these structures are
not recognised under Polish law, it is possible to administer
trusts from Poland and in that case the review notes that
ownership information for the settlors, beneficiaries and
trustees is not captured by the authorities. 965
In the EU negotiations on the fourth anti-money laundering
directive at the end of 2014 the Polish government is
reported to have been one of the countries against making
beneficial ownership information fully available to the
public. 966 However, the government’s official position is
not known as it has currently not clarified how it plans to
implement the directive and whether it will allow full public
access to the registers. While the government’s position
is unclear the position of its citizens is crystal clear, with a
survey conducted in 2015 showing that 82 per cent of Poles
favour making the information public. 967
EU solutions
Poland headed for a collision course with the European
Commission after months of stalling on a reply to a request
for information on the country’s tax ruling practice. In
June the Commission took the unusual step of threatening
Poland – together with Estonia – with legal action unless
the information was handed over within one month. 968
According to the Ministry of Finance, by June 2015 they
were still conducting analysis to look into the “legality of
providing information on APAs [one type of tax rulings] to
the Commission.” 969 Finally, in reply to the Commission’s
request, the Ministry of Finance sent 25,000 individual tax
rulings out of which 700 had a cross-border element. 970
The Ministry reports that all individual rulings along with
the request for interpretation are published in the Bulletin of
Public Information. However, this is only after removing data
identifying the applicant. It further states that it supports the
publication of anonymised data on the number and type of
APAs under the EU’s Joint Transfer Pricing Forum. 971
The Ministry of Finance reports that it supports the
Commission’s attempt to re-launch the proposal for a
coordinated EU approach to corporate taxation (the socalled
Common Consolidated Corporate Tax Base (CCCTB)
proposal). However, the Ministry also reports that it is
against the consolidation of tax bases in the EU, without
which the proposal is toothless against tax dodging. 972 The
Ministry of Finance also states that it sees the EU’s Code
of Conduct Group on Business Taxation as only a “partially”
effective way of removing harmful tax practices in the EU. 973
A week after the Commission published its list of noncooperative
jurisdictions 974 (or tax havens) in June 2015,
the Polish government delisted Bermuda from its own
national list of uncooperative jurisdictions, following “furious
criticism” from Bermuda officials. 975 Shortly before the
publication of the Commission list, Poland also delisted
Gibraltar from its own list. 976 Moves like these can have
consequences for the Commission list, as only jurisdictions
listed on at least ten Member States’ national list are
included on the Commission’s list. 977
Global solutions
Poland has a representative acting as an expert in the
Committee of Experts on International Cooperation in
Tax Matters. Consequently, Poland fully supports the UN
processes aimed at assisting developing countries on tax.
However, the Polish government states that it sees a need
to analyse the establishment of an intergovernmental body
under the auspices of the United Nations on tax before
deciding its position. 978 At the Financing for Development
(FfD) conference in July 2015, the Polish government did not
deviate from the EU line, which rejected the establishment of
the UN intergovernmental body. According to Polish internal
policy, all Tax Information Exchange Agreements have to
be signed with a condition of reciprocity. 979 This condition
implies that Poland will effectively exclude exchanging
information with most developing countries, since they do
not have the capacity and the systems to collect and share
information from their own countries automatically.
Conclusion
Steps have been taken forward by the Polish government
against tax dodging in the past year, with new CFC rules, a
General Anti-Avoidance Rule and other measures intended
to shore up the tax base of Poland. Encouragingly, the
Ministry of Finance has started to cooperate with the
Ministry of Foreign Affairs within the PCD process, and
taxation and its effects on developing countries is one of
the issues being looked at. These are all positive signs
of change. However, a lot of work still remains, not least
on corporate transparency where Poland often takes a
negative stand, as was again demonstrated in 2015 when
the government decided to implement confidential country
by country reporting requirements. Poland has deepened
its activities at the EU and global level. An indication of
this came during the FfD summit where the Minister of
Finance was present as a head of the Polish delegation.
Unfortunately, however, Poland did not support the
establishment of an intergovernmental tax body.