A matter of whether there is a tax regarding server rental services, purchased from foreign taxpayers, concerns polish taxpayers, is a subject to many disputes that are pending before Voivodship Administrative Courts and Supreme Administrative Court. These courts adjudicate largely in favour of taxpayers, thereby expressing a view that is different from the one presented by tax authority in its own interpretations.
The flat – rate income tax must be collected in case of payment for rent, hire or leasing of industrial devices. According to art. 21 of CIT Act, tax is applied to, among others, revenue generated by foreign taxpayers arising from use or right of use of industrial device. Discrepancies and problems occur in relation to interpretation of the concept of ‘industrial devices’. In established case-law line, it is pointed out that tax authorities often perform an incorrect interpretation of this concept, assuming that it should be understood maximally broad. For example, in the judgement of Voivodship Administrative Court in Gdańsk (sign. I SA/Łd 141/21), we read that taken by tax authority understanding of this concept as “any device used in professional rotation”, does not deserve an approval.
In the judgement act sign. II FSK 1061/21, Supreme Administrative Court, by dismissing Director’s of the National Tax Information cassation appeal, ruled in favour of taxpayer. The indicated case was about purchasing server rental/leasing services by the entrepreneur for storage and handling purposes from Czech Republic and German taxpayers. In a request for interpretation, taxpayer pointed out that abovementioned services cannot be identified with sharing the industrial device, with that being said, an obligation to tax at source is excluded. In the issued tax interpretation, tax authority claimed, however, that servers should be included among industrial devices category within the meaning of art. 21 par. 1 p. 1 of CIT Act and art. 12 par. 3 of DTA Germany and art. 12 par. 3 of DTA Czech Republic. Nevertheless, in this situation, in the wake of case law in similar cases given in a different composition and numerous jurisprudence of Voivodship Administrative Courts, SAC stated that “service that concerns sharing of space and server resources in the shape of virtual computer memory space rules out a possibility of qualifying such service as putting industrial device into operation (…) these devices do not fulfil industrial tasks provided that they are not associated with strictly industrial device that participates in manufacturing process”.