Conducting R&D activity and a positive interpretation of IP Box

Resolution of the issue of conducting research and development activity by the taxpayer is crucial in the context of obtaining a positive tax interpretation regarding the possibility of applying for the IP Box relief, i.e. preferential taxation of the so-called qualified income at a rate of 5%.

When submitting requests for individual interpretations on behalf of our clients, we sometimes obtained a decision from the National Tax Information Authority (KIS) on leaving the request unrecognized due to failure to complete the application. KIS presented the position, according to which it is the applicant that is obliged to explain unambiguously whether the nature of its activity is related to scientific research or development work.

The Supreme Administrative Court (NSA) issued a breakthrough judgment on 23 November 2021 (Case No. II FSK 1049/21) stating that a taxpayer seeking an individual interpretation cannot be required to decide on his own whether his activities constitute research and development within the meaning of Article 5a(38-40) of the Personal Income Tax Act.

In the NSA’s view, the authority’s position would lead to undermining the sense of issuing tax interpretations if the application itself is to provide an answer to the question posed to the authority.

We provide our clients operating in the IT sector with assistance in obtaining a positive interpretation. To this end, we cited the above NSA ruling. We received a positive answer in which the authority independently qualified the taxpayer’s activity.

We received an interpretation from the National Tax Information Authority in which the authority directly qualifies the activity of the Taxpayer as R&D activity. This proves the effectiveness of our law firm. We guarantee our clients full protection afforded by individual tax interpretations.

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