The standpoint of the Polish tax authorities may — in simplified terms — be summarized as follows: Any time a taxpayer established outside Poland (but performing supplies of goods/services, the place of supply of which for VAT purposes is in Poland) acquires from a Polish-based entity services that enable or at least significantly support its taxable activity in Poland, for VAT purposes, this entity should be viewed as having a fixed establishment in Poland.
The Polish tax authorities have begun to present this approach under the influence of the CJEU decision in the Welmory case, C-605/12, (this case involved a fraud structure that was used in B2C transactions — nevertheless, the tax authorities and the Polish courts commonly invoke this decision to support their position also in legal, B2B structures). In this decision, the CJEU did not exclude that in certain situations, human and technical infrastructure of a Polish service provider may effectively create a fixed establishment in Poland for its service recipient established abroad. This conclusion was to some extent confirmed in the judgment of the CJEU issued in the Dong Yang Electronics case, C-547/18 (p. 32 of this judgment), issued in 2021.
Source Baker & McKenzie
