A contract for the provision of tolling services may result in the creation of an Fixed Establishment

The Supreme Administrative Court in its ruling of February 26, 2020 (reference number I FSK 1313/17) recognized that a German company which concluded a cooperation agreement with a Polish company for an indefinite period, under which it acquires processing services for its goods temporarily in the territory Poland, has a permanent place of business in the country.

In the request for interpretation, a company based in Germany indicated that it did not have permanent technical facilities or infrastructure in Poland. She explained that she entrusts the goods she owns to the Polish contractor. These goods are stored in the Polish contractor’s warehouse, and eventually processed and transported back to Germany. The company added that it employs only one employee in Poland, who, for example, represents her during the fair. She emphasized that all strategic decisions are taken by the management board and authorized employees of the company in Germany.

The interpretative body considered that in the light of the described facts, the company has a permanent place of business in Poland, which is characterized by sufficient stability and appropriate structure in terms of personnel and technical facilities.

Also, the Provincial Administrative Court in Warsaw considered that the company’s activity was characterized by sufficient stability and adequate structure in terms of personnel and technical facilities to recognize that it had a permanent place of business in Poland. He assessed that the availability of the facilities used by the German company is comparable to the availability of its own facilities because it uses the warehouses of the Polish contractor, its equipment and professional staff. The NSA shared the position of the court of first instance.

Source Deloitte

Unofficial translation in English

 

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