Mandatory disclosure rules – MDR-2 form

This article will answer the following questions:

• Which business entities are obliged to submit MDR-2 forms?
• When a business entity must submit an MDR-2 form?
• What should be disclosed in an MDR-2 form?

Who is obliged to submit MDR-2?

The obligation to file MDR-2 lies, as a rule, with the promoter or supporter. To make it easier for taxpayers reporting their arrangements to meet this obligation, the Tax Ordinance Act states regulations that directly pinpoint situations when the obligation to submit the MDR-2 form arises. 

According to the statistics published by the Ministry of Finance, from the day the regulations on MDR became effective until 30 June 2024, taxpayers submitted a total of 3,446 MDR-2 forms (originals and supplements). 

When is the promoter of a reportable arrangement obliged to submit MDR-2? 

The promoter is required to submit MDR-2 if providing information on a reportable arrangement other than a standardised reportable arrangement would violate the obligation to maintain legally protected professional secrecy (and the promoter has not been released from the obligation to maintain it in this respect by the user. 

In such a case, the promoter must inform the user in writing of the obligation to provide information on a reportable arrangement to the Head of the National Revenue Administration, before the deadline for its reporting, and transfer to the user the data concerning the reportable arrangement.

If more than one promoter is obliged to provide information on the reportable arrangement, the promoter must inform in writing not only the user, but also other entities known to them that are obliged to provide information on the arrangement of not forwarding the information to the Head of the National Revenue Administration.

The promoter has 30 days to submit the MDR-2 form, counting from the date on which they informed the user (or other entities) of the obligation to provide information on the reportable arrangement.

When is the supporter obliged to submit the MDR-2 form? 

The supporter is required to file the MDR-2 form on two occasions.

Firstly, when the supporter was obliged to submit an MDR-1 form but was not released from the obligation to maintain legally protected professional secrecy (if  they are subject to such an obligation by law). In such a case, the supporter must:

• file the MDR-2 form – within 30 days from the day following the day on which they provided directly (or through other persons) assistance, support or advice regarding devising, marketing, organising, making available for implementation or supervising the implementation of the reportable arrangement, and 
• immediately inform the promoter (or user) in writing that in their opinion the arrangement constitutes a reportable arrangement.

Secondly, the supporter will be required to submit the MDR-2 form to the Head of the National Revenue Administration when the supporter has not been informed of the reportable arrangement number or its absence, and has doubts (while maintaining due diligence generally required for the activities performed by them, taking into account the professional nature of their activity, their area of expertise and the subject of the activities performed by them) whether the arrangement should be subject to reporting.

In such a case, the supporter is obliged to, within 5 days of becoming doubtful:

• send a letter to the promoter or user requesting a written statement stipulating that the arrangement does not constitute a reportable arrangement,
• submit an MDR-2 to the Head of the National Revenue Administration.

Can MDR-2 be submitted by a proxy?

The MDR-2 form submitted by a natural person is signed by that very natural person, whereas where the form is submitted by an organisational unit, the document is signed in accordance with the general principles of representation of that organisational unit. The provisions on proxies also apply accordingly.

Additionally, the provisions on power of attorney contained in Chapter 3a Section IV of the Tax Ordinance Act do apply to the MDR-2 form (as to the MDR-1 and MDR-4 forms). Consequently, the MDR-2 form may in fact be submitted by a proxy. 

It should, however, be remembered that Polish law does not allow for granting a power of attorney to sign declarations submitted via electronic means of communication and to forward to the Head of the National Revenue Administration documents confirming the granting of a power of attorney using the UPL-1 form. This means that the only legitimate power of attorney for submitting the MDR-2 form is the special power of attorney form (PPS-1).