Renewable energy sources are undoubtedly the future of the European energy sector. In Poland, the trend of farms using renewable energy sources should also be viewed as increasing. This is mainly due to aid programmes and tax preferences and allowances. It is also becoming a trendy topic and in the long run it may simply be profitable from the consumer’s point of view. In this article we will analyse what specific obligations arise from the Act of 20 February 2015 on Renewable Energy Sources (hereinafter: RES) and other acts for small installations on the basis of an individual interpretation issued by the Director of the National Fiscal Information – reference letter at the end of the article.

Factual state to which the interpretation relates

The taxpayer has installed a photovoltaic micro-installation of a total capacity not exceeding 1 MW. According to the Act of 10 April 1997 – Energy Law – the entity is exempt from the obligation to obtain a concession for the production, transmission, distribution or trade in electricity. The energy produced in this way is used for its own needs and is not supplied to the network. The investment was financed through operating leasing, so formally the leasing company remains the owner and the company is only the user of the installation.

In view of the above, the applicant posed the following questions: should such a company only submit excise duty declarations, and secondly, in connection with this, is it not obliged to make a registration declaration and keep records of the amount of energy produced? The position was as follows: the applicant should file excise declarations in connection with the energy produced, but should not register or keep records. The director of the National Fiscal Information agreed with this position.

NFI standpoint

The director of the KIS traditionally began his justification by defining the meaning of excise goods, which is undoubtedly electrical energy, which can be found in Appendix 1 to the Excise Duty Act of 6 December 2008 (hereinafter: the “Act”), listing electrical energy with code CN 2716 00 00. The definition of the final customer and the subject of excise duty on electrical energy was also mentioned.

The registration notification must be submitted by a business entity intending to carry out activities subject to excise duty – before the date of the first such activity – art. 16, sec. 1, item 1, letter a of the Act.

There is no obligation to register to the Central Register of Excise Entities in the case of entities producing energy with a total capacity not exceeding 1 MW, provided that excise duty has been paid on the products used for this production. This is where the first red light comes on. In my opinion, the applicant, being a lessee, has no influence on whether excise duty on the products used in the production of the installation has been paid, but let us go further. [1]

According to Article 24 of the Act relating to the method of calculation, the deadline for payment or generally to the tax return for electricity – the excise duty due must be paid by the 25th day of the month following the month in which the tax obligation arises.

Assessment

The head of the KIS stated that the declaration in this case should be prepared. The question arises how to prepare, and above all, how to submit the declaration, if you are not a registered taxpayer? This question seems to be particularly justified now – when as of 1 July, declarations can no longer be filed on paper – let’s call it analogue. Currently, the whole process takes place on a renewed PUESC platform (no longer with the green logo, but red), so it is interesting how to submit declarations without registering the entity. As we read in comments and publications, technically it is possible.

In light of Art. 138h of the Act and in the case of such a simple installation consisting of generators not exceeding the capacity of 1 MW and is not supplied to connected installations and is consumed only by this entity, excise duty does not have to be recorded.

Therefore, in accordance with the above, in order for an entity producing and consuming electricity from generators of a total capacity not exceeding 1 MW not to be obliged to keep records, it is necessary, among other things, that the energy is consumed entirely by this entity and that it is not supplied to interconnected and cooperating installations used for the transmission of this energy.

As a practical remark: it is difficult to find any template of such records – the act contains elements which such records must have. It is known, however, that it can be kept electronically or on paper, so it seems that keeping meticulous records in an excel file will suffice. Fortunately, in this case it will not be necessary to prepare such records.

In summary, the applicant is an unlicensed taxpayer who has produced energy, for whom consumption itself will be a taxable activity. The condition of energy consumption and its moment causes tax obligation and the obligation to file a tax return. It is worth noting that the fact that the taxpayer is not the owner of the installation, but is a lessee is of no significance in this respect, because what is significant are the actions performed by him.

Individual interpretation by the Director of the National Tax Information dated 7 April 2021, ref. 0111-KDIB3-3.4013.33.2021.2.MK

[1] In the further part of the interpretation, the KIS Director explains – This means that in the case of an entity generating electricity in a photovoltaic installation (the condition concerning the necessity to pay excise duty on energy products used to produce this electricity does not apply here due to the fact that solar energy is not classified as energy products),