Firstly, let us hope that the slight frenzy that the tax authorities of EU Member States fell into regarding the, let’s say – misuse of the concept of a fixed establishment for purely fiscal purposes is slowly receding. Admittedly, the CJEU is still not willing to adopt the highly reasonable solution proposed by Advocate General J. Kokott in her great opinion in Dong Yang to adopt as rule that a formally independent entity cannot be both an independent taxable person and a fixed establishment of another taxable person (unless we are dealing with a fraudulent activity), but in subsequent decisions limits the possibility of recognizing such a dual role of the taxable person.Secondly, in recent years, Polish tax authorities have assumed on a number of occasions that toll manufacturing services supplied by Polish taxable persons on similar terms to those analyzed by the CJEU constitute a fixed establishment of the service recipient in Poland (and therefore are taxable in Poland). The judgment in question may provide the basis for making adjustments and recovering overpaid tax. Each case is different – but it is worth to analyze whether in a specific situation of a Polish taxable person who may have unnecessarily settled VAT in Poland, the amount paid could now be recovered.
Source: mddp.pl
See also
- ECJ C-232/22 (Cabot Plastics Belgium) – Judgment – Toll manufacturing with ancillary services does not lead to Fixed Establishment
- Summary of ECJ-232/22 (Cabot) – No fixed establishment due to lack of human and technical resources even if ancillary services are performed, exclusivity
