Obowiązki płatnika a opodatkowanie międzynarodowych transakcji gospodarki cyfrowej w świetle propozycji OECD w ramach projektu BEPS (wybrane zagadnienia)

Abstract

The OECD Final Report on Prevention of BEPS proposes to impose withholding tax on income from the sale of digital goods or services by entities resident in one country to residents of another country. The withholding agent’s obligations would rest on entities conducting business activity purchasing digital goods or services (B2B relations) and on payment institutions servicing the payment process for digital goods or services purchased by the consumer (B2C relations). The assessment of the possibility of establishing the withholding agent’s obligations should take into account the legal nature of this obligations. The withholding agent’s obligations constitute one of the categories of non-monetary burdens and public services within the meaning of art. 84 of the Constitution, and the conditions for their introduction are subject to legal examination from the point of view of the requirements of the principle of proportionality, referred to in art. 31 sec. 3 of the Constitution. The OECD’s proposal to impose the withholding agent’s obligations on entities conducting business activity purchasing digital goods or services from a non-resident entity raises serious constitutional doubts. Therefore, consideration should be given to imposing the obligations of the withholding agents on payment institutions servicing the payment process for a digital good or service purchased not only by the consumer, but also by an entity conducting business activity.