III SA / Wa 1316/21 – Judgment of the Provincial Administrative Court in Warsaw
In the opinion of NUCS, the evidence gathered in the case allowed to conclude that the activity of P. Ltd., R. sro, I. Ltd, R. Ltd., A. GmbH and A. OU consisted in introducing fuel to the territory of the country, from through registered customers, excise tax and fuel surcharge were paid, and then the fuel was sold to Polish customers. Thus, these entities, conducting a licensed business activity consisting in purchasing fuel from abroad, were obliged to maintain a certain level of organization of their activities in the territory of the country. This organization has a specific material dimension, in particular with regard to fuel storage, due to the obligation to maintain mandatory reserves. The concessions for fuel trading obtained by the entities indicated their intention to be present in the country for a long time in connection with their economic activity. For these reasons, NUCS assumed that they had the necessary personnel and technical resources in Poland, enabling them to receive services provided by Polish entities and use them for the purposes of economic activity performed in the country (Poland).
According to DIAS, the organization of a permanent organizational structure is indicated by: obtaining by contractors a concession for trading liquid fuels in Poland; concluding agreements with the Complainant for the creation and maintenance of mandatory stocks of liquid fuels; permanent use by the entities in question of the services of Polish transport companies that transported fuel; making financial settlements with the use of bank accounts maintained by banks based in Poland; sitting on the authorities of the Company’s contractors of persons who were closely related to Polish companies providing services to the Company’s contractors; actual performance of management functions not by the management board, but by persons more or less formally related to the Company’s contractors residing in Poland; existence of managing bodies at the Company’s contractors, which included employees of foreign entities providing paid administrative services; constant use of the services of domestic law firms, entities and persons professionally prepared to provide legal and advisory services in the field of taxes in the conducted activity; constant use of the services of domestic entities in the field of accounting services; using the services of entities registered in Poland belonging to the same capital groups; constant use of the services of translators based in the country; using the technical infrastructure in the conducted business activity necessary for office services provided to the Company’s contractors by entities based in Poland; standing orders in the field of business process support provided to the Company’s contractors by Polish business units; use of certification services or the development of documentation required for the purposes of permanent operations in Poland, which were provided by Polish companies to the Company’s contractors.
Undoubtedly, therefore, the fact that these entities held a license to trade in liquid fuels in Poland and concluded agreements with the Complainant for the creation and maintenance of obligatory stocks of liquid fuels does not in itself prove that these entities have a permanent place of business in the country.
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