Taxation of income from abroad – a practical guide

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Piotr Kłodziński|
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Many compatriots decide to leave Poland in search of better earnings. Tempting job offers with high salaries are encouraging, but not everyone remembers the need to settle taxes on such income. Some income must be taxed in Poland, others only in the country of source of earnings, and sometimes, unfortunately, also in both countries.
How to determine the correct tax obligation and what to remember? We explain in the article below.

Tax residence – the key to determining the country of income tax 

The first step to determine whether and in which countries, but also to what extent, a given person is subject to tax liability, is to determine his/her tax residence.
The definition of Polish tax residence can be found in Art. 3 section 1 of the Act of 26 July 1991 on personal income tax:

Art. 3 

  1. Natural persons, if they reside in the territory of the Republic of Poland, are subject to tax liability on all their income (revenues), regardless of the location of the sources of income (unlimited tax liability).

So the key criterion is place of residence in the territory of the Republic of Poland.

However, contrary to what it might seem, place of residence does not literally mean living in Poland. So what do we mean by the term "place of residence"? This is explained in the next paragraph of the mentioned article:

1a. A person residing in the territory of the Republic of Poland is considered to be a natural person who:

1) has a center of personal or economic interests (centre of vital interests) in the territory of the Republic of Poland, or

2) stays in the territory of the Republic of Poland for more than 183 days in a tax year.

 

The "or" functor means that both of these criteria do not have to be met jointly to recognize a given natural person as a taxpayer in Poland - it is enough to meet one of them. The second criterion, which allows us to determine whether we live in the territory of the Republic of Poland, and therefore whether we are a tax resident in Poland, is apparently relatively simple - it would be enough to "count" how many days a given person actually stayed in our country. The specified period must be longer than 183 in the calendar (fiscal) year. Moreover, this stay does not have to be uninterrupted - if the stay in Poland took place more than once, periodically, then in total these periods must exceed 183 days in a calendar year to be considered on this basis that a given person is a Polish tax resident. But there are also exceptions to this rule in case law and interpretations - we write about them in more detail in the opinions prepared for our clients.

The situation is more complicated with the criterion specified in the first subsection. What is meant by the term "center of vital interests"? 

According to the tax clarifications of April 29, 2021, available on the government website, the existence of a center of interest in Polandysocial means having close personal or economic ties with Poland̨. More precisely, in the case of a given natural person, Poland should be considered as the place where the close personal connections of the potential taxpayer are concentrated. This includes, among others, social ties, taking up social, cultural, sports and political activities - as an example, it is enough to mention conducting extensive activist activities, working in a foundation or being an active member of a political party. However, the most characteristic connection is having a spouse, partner or minor children in Poland, as well as running a business here. In the above-mentioned cases, but also in many others, the authority will very likely assume that the potential taxpayer is domiciled in Poland and is therefore a Polish tax resident and must bear the burdens of obtaining income here. Please remember that the situation of a potential taxpayer is always examined ad casu due to the vagueness of statutory concepts

If it is recognized that a given natural person is a Polish tax resident, based on the criteria mentioned above, he/she is obliged to unlimited tax liability – this means that any income obtained abroad, but also any income obtained in Poland, will be taxed in our country. There is also the issue of taxation in the second country where the source of our income is located, which will be discussed later in the article.

Example No. 1:

Mr. Adam works in Germany in a transport company, where he stays abroad for 9 months, and on holidays and when he has free time he comes to Poland, where he has a family - his wife Karolina and two small children. In this case, despite staying in Germany for a period longer than 183 days (which also means that he does not stay in Poland for a period longer than 183 days), Mr. Adam will have to pay income tax on his earnings in Germany, but also in Poland, due to having close personal connections in the homeland.
The mechanisms for avoiding double taxation are specified in a bilateral agreement on the avoidance of double taxation, concluded between Poland and Germany, which usually saves this situation. 

However, if the authority finds that we are not a Polish tax resident, i.e.:

  1. nor do we have a center of personal or economic interests in the territory of the Republic of Poland
  2. nor did we stay in Poland for more than 183 days a year

it weighs on such a person limited tax liability, as referred to in Art. 3 section 2a of the Personal Income Tax Act:

2a. Natural persons, if they do not have their place of residence in the territory of the Republic of Poland, are subject to tax liability only on income (revenues) obtained in the territory of the Republic of Poland (limited tax liability).

This means that income obtained outside Poland is subject to taxation only in the country where it is actually obtained. Only earnings earned here are subject to taxation in the Republic of Poland. 

Example No. 2:

Mrs. Dorota, the breadwinner of the family, decided to settle permanently in Spain, where she will earn a handsome salary thanks to her education. Her husband, Dariusz, agrees to this idea, so the family, along with their child, move permanently to Spain. If, in a given calendar year, Ms. Dorota and her family stay in Spain longer than in Poland, i.e. for a period longer than 183 days, the tax authority will most likely find that Ms. Dorota is not a Polish tax resident - after moving, her entire family does not have a place here. she was the center of her life's interests, and she spent most of the calendar year in Spain. Any tax on income earned in Spain will be paid there.  

I am a Polish tax resident, but a significant part of my earnings come from abroad - where should I settle my income tax?

As mentioned earlier in the article, if we are recognized as a Polish tax resident, but we still obtain income from foreign sources, such income will be subject to taxation in Poland, but may also be subject to taxation in the country of earning. The only exception where such earnings are taxed only in Poland is total fulfillment of three conditions that appear in double taxation agreements concluded between Poland and other countries:

  1. the employee stays in the other country for no longer than a specified period (usually a period of 183 days in a calendar year or within the next 12 months, counted from the date of arrival in this country)
  2. the remuneration is borne by or on behalf of an employer who is not resident or established in the other State
  3. the remuneration is not borne by a permanent establishment or fixed base which the employer has in the other State.

If we meet all three conditions and work in a country other than Poland, we will pay tax on the income obtained only in our country, and not in the country where the income is obtained. 

Tax on income due in Poland and in the country where I earn money - will I pay tax twice?

Due to the frequent occurrence of double taxation situations, various countries around the world, including Poland, conclude agreements on the avoidance of double taxation (Poland is currently bound by 90 such agreements). Pursuant to Art. 4a of the Personal Income Tax Act, provisions of art. 3 section 1, 1a, 2a and 2b shall apply with due regard contracts on the avoidance of double taxation, to which the Republic of Poland is a party. As mentioned earlier, Art. 3 and its paragraphs concern determining who is qualified as a Polish tax resident.

Depending on the treaty, States determine one of two mechanisms for the avoidance of double taxation:

  1. exclusions with progression and
  2. proportional deduction.

The first method is that income earned abroad is excluded from the tax base in Poland. The second one is that income earned abroad is taxed in Poland, but from the tax due here it is possible to deduct the tax already paid in the country where we earn. Detailed descriptions of the use of these mechanisms can be found in the contracts, usually in appropriately titled articles.

 

I decide to work in Dubai, i.e. in the United Arab Emirates - there is no such thing as personal income tax. Will I pay income tax in Poland on the money earned in Dubai?

A rather specific example is earning money in a country that is called a paradise (also a tax paradise) for a reason. However, tempting earnings, for example in Dubai, may turn out to be taxed in Poland. We will analyze this on the basis of the information presented earlier, in comparison with the provisions of the Polish Personal Income Tax Act and the agreement concluded between Poland and the United Arab Emirates on the avoidance of double taxation.

First, you need to check whether a given natural person is a Polish tax resident. If a future employee of a Dubai company will stay outside Poland for a period longer than 183 days and will not have any close personal or economic ties, i.e.:

  1. the whole family moved with the employee to the United Arab Emirates
  2. employee, single, there are no close connections here (interestingly, visiting parents is not perceived as a close personal connection, due to leading an independent, adult life)
  3. the employee does not run any business in Poland and does not derive any income here, for example from renting his current apartment in Poland
  4. and many, many others - as mentioned above, assessment should be carried out ad casu,

then you can be sure with 99.99% that he will not be classified as a Polish tax resident. So what's next? Pursuant to Art. 24 section 2 agreements with the UAE, in the case of a person residing or having its registered office in the United Arab Emirates, double taxation will be avoided in the manner resulting from the legislation of the United Arab Emirates, subject to general principles avoidance of double taxation. Therefore, most likely, such a person will be considered a tax resident in the UAE, which means that you should look for further information only in the regulations of this country.


I have been recognized as a tax resident in Poland and in Dubai, i.e. in the United Arab Emirates - so where should I pay the tax?

This problem is also solved by a double taxation agreement. This is how the agreement with the United Arab Emirates solves it (in this case, Article 4, paragraph 3):

  1. Where, in accordance with the provisions of paragraph 1, an individual may be deemed to be a resident of both Contracting States, his status shall be determined according to the following principles:
  2. (i) a person shall be deemed to be a resident of the State in which he has his permanent home available. If he has a permanent home available to him in both Contracting States, he shall be deemed to be a resident of the Contracting State in which his personal or economic connections are closer (center of vital interests);
  3. (ii) if it cannot be determined in which of the Contracting States a person has his center of interests, or if he has no permanent home available to him in any of the Contracting States, he shall be deemed to be a resident of the Contracting State in which he habitually resides;

(iii) if he is habitually resident in both States or in neither of them, he shall be deemed to be a resident of the Contracting State of which he is a national;

  1. (iv) if he is a national of both Contracting States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.

Therefore, in the event of a conflict of tax residences, you should primarily rely on this provision to assess where to pay the tax due. 

No tax – no problem?

But! As mentioned above, there is no such thing as personal income tax in Saudi Arabia or the UAE. This leads to the conclusion that if a given person is recognized as a tax resident, e.g. in the United Arab Emirates, and is not recognized as such a resident in Poland, the employee he simply won't pay any tax. Which means that for a Polish resident of Saudi Arabia, Abu Dhabi or Dubai, all his earnings will be "pure" earnings.

Of course, you need to exercise a little more if the potential taxpayer spent more than 183 days in Poland in a given year, but this is a topic for a separate study, which we prepare only for interested clients.

we invite you to contact the office in matters related to tax obligations of persons earning income abroad, as well as other issues related to other assets, capital investment and income from it - we provide professional legal services, helping to obtain answers to many difficult questions and designing effective legal and tax solutions. 

 

PS If a given person is recognized as a tax resident in Poland, the taxpayer who obtained income abroad may also benefit from a small so-called abolition relief, referred to in Art. 27g of the Personal Income Tax Act:


Art. 27g. 

  1. A taxpayer subject to tax obligation specified in Art. 3 section 1, settling in accordance with the principles specified in Art. 27 section 9 or 9a, income obtained outside the territory of the Republic of Poland in the tax year:

1) from the sources referred to in Art. 12 section 1, art. 13, art. 14, or

2) from property rights in the field of copyright and related rights within the meaning of separate provisions, from artistic, literary, scientific, educational and journalistic activities performed outside the territory of the Republic of Poland, with the exception of income (income) obtained from the use or disposal of these rights 

– has the right to deduct from income tax calculated in accordance with Art. 27, the amount calculated in accordance with section 2.

  1. The amount constituting the difference between the tax calculated in accordance with Art. 27 section 9 or 9a and the amount of tax calculated on income from the sources referred to in paragraph. 1, applying to this income the principles specified in Art. 27 section 8. However, this deduction cannot exceed PLN 1,360.
  2. The deduction does not apply when income from the sources referred to in section 1, were obtained in the countries and territories listed in the regulation issued pursuant to Art. 23v section 2.
  3. The provisions of section 1-3 shall apply accordingly to the tax calculated in accordance with Art. 30c.
  4. The provisions of section 2, second sentence, does not apply to income obtained in the tax year outside the territory of the Republic of Poland from the sources referred to in Art. 12 section 1 and art. 13 point 8 letter ai point 9, if this income is obtained from work or services performed outside the land territory of states.
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