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Taxpayers' problems with marking GTU_10

The GTU_10 symbol is one of the GTU codes used for the mandatory marking of the sale of certain goods and services in the new JPK_V7 file. In the case of GTU_10, these commodities are buildings, structures and land. How do I identify if my delivery is eligible for this code? How to proceed in exceptional situations? You can read about taxpayers' problems with the GTU_10 marking and their solutions in this publication.

Basic issues related to the identification of the delivery of buildings, structures and land subject to marking with the code GTU_10

For suppliers of buildings, structures and land, one of the new obligations towards the JPK_V7 file, i.e. a properly kept VAT register (from October 2020), is the proper marking of sales documents with the code GTU_10.

The matter may seem simple, but there are many situations and many exceptions that cause confusion among taxpayers.

The main issue with regard to the delivery of buildings, structures and land is that GTU_10 is subject to the delivery of buildings, structures and land. The delivery of goods (fixed assets) is associated with the transfer of the right to dispose of the goods as the owner, and therefore not only the sale, but also other forms of delivery of buildings, structures and land, which result in the transfer of the right to dispose of the goods as an owner, are marked with the GTU_10 symbol.

It is extremely important for a more complete understanding of the situations in which the above-mentioned rules should be applied. code. We will discuss what these forms of delivery may be later in this publication.

The concept of a building according to PKOB

The second important issue in the proper identification of the subject of delivery is the clarification of the concepts of a building, structure and land on the basis of the Construction Law and the Polish Classification of Construction Objects (PKOB).

In art. 3 point 2 of the Act of 7 July 1994 - Construction Law, hereinafter referred to as the Construction Law, a building should be understood as a construction object that is permanently connected to the ground, separated from the space by building partitions and has foundations and a roof.

Building according to PKOB means roofed construction objects with built-in installations and technical devices, used for permanent needs. They are adapted to the presence of people, animals or the protection of objects. However, according to this classification, the building is also independent underground construction facilities (such as: shopping centers, workshops, underground garages).

Moreover, PKOB considers a shelter as a special type of building, which is an above-ground room with no walls on all sides or even no walls at all.

Further explanations of the concept of a building according to PKOB show that if the taxpayer deals with interconnected buildings (so-called semi-detached or terraced houses), a given building will be an independent building when it is separated from other units by a fire-resistant wall from the foundation to the roof. However, if this wall is not present, buildings connected to each other are considered separate buildings when they have their own entrances, are fitted with fittings and are used separately.

The PKOB classification divides buildings into:

residential, which includes construction works where at least half of the total usable area is used for residential purposes, and if less than half of the total usable area is used for residential purposes, such a building is classified as non-residential according to its intended use;
non-residential - these are construction objects used mainly for non-residential purposes. In the event that at least half of the total usable area is used for residential purposes, the building is classified as a residential building.

The concept of a building according to PKOB

Pursuant to Art. 3 point 3 of the Building Law Act, a structure should be understood as any construction object that is not a building or a small architecture object, such as: linear structures, airports, bridges, viaducts, flyovers, tunnels, culverts, technical networks, free-standing antenna masts, free-standing permanently attached with the ground, advertising boards and advertising devices, earthworks, defensive (fortifications), protective, hydrotechnical structures, tanks, free-standing industrial installations or technical devices, sewage treatment plants, waste landfills, water treatment stations, retaining structures, overground and underground pedestrian crossings, utilities networks, sports facilities, cemeteries, monuments, as well as construction parts of technical devices (boilers, industrial furnaces, nuclear power plants, wind farms and other devices) and foundations for machines and devices, as technically separate parts of the objects that make up the whole utilitarian.

In addition, PKOB indicates that structures may also constitute civil and water engineering objects, i.e .: road roads, railroads, bridges, highways, airport roads, water dams, etc.

On the other hand, the definition of structures for the purpose of determining GTU_10 should exclude those structures which in turn will constitute buildings.

What is the ground?

According to the terminology of the PWN Dictionary of the Polish language, the soil means the top layer of land suitable for cultivation. It is also referred to as simply the surface of the earth.

All types of soils are marked with GTU_10, except for structural elements located on them.

Renovation and construction services and the symbol GTU_10

The presentation by the Ministry of Finance of only three terms for the delivery of goods subject to GTU_10 did not bring much to the understanding of the essence of this symbol.

Only clarifying them in accordance with the classification of building objects and the construction law has made the sense much closer, i.e. which objects qualify and which do not qualify for marking a given sales invoice (or other sales document) with the GTU_10 symbol.

The first doubt related to the GTU_10 symbol is whether construction and renovation services are subject to these markings. However, the Ministry of Finance quickly emphasized that the sale of this type of service did not correlate in any way with the GTU_10 code.

The basis for marking with the GTU_10 symbol is the delivery of buildings, structures and land, not accompanying services. However, it should be borne in mind that some of them are exceptions in this regard. It is about services that result in the transfer of the right to dispose of the goods as an owner.

Rental services and the code GTU_10

Rental services, lease of buildings, structures or land, which in essence, after the end of the contract, do not transfer the right to dispose of the property as the owner to the user, are not subject to GTU_10 in any case.

If, however, after the end of the contract, the property is transferred to the user, then at the time of delivery of this property (transfer of rights), the supplier is obliged to include in JPK_V7 the given sale transaction (not the rental services, but the transfer of rights) with the symbol GTU_10.

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Invoices and other documents confirming the sale of buildings, structures and land must be marked in the month of their delivery with a special code GTU_10. Both he and many others are new symbols that since the settlement for October 2020.is obliged to correctly assign each Polish active VAT taxpayer by completing the VAT register in the JPK_V7 file.

Unfortunately, with the appearance of the JPK_V7 file and many markings, taxpayers have a lot of problems to find themselves in the new reality of codes and additional obligations. So what to do in some cases?

Sales for companies and more

The basic issue in the sale of buildings, structures and land is that GTU_10 is subject to delivery to companies, as well as to natural persons not conducting business activity. Therefore, in the case of delivery of buildings, structures and land to companies, the seller will use the GTU_10 mark when registering the sales invoice.

On the other hand, when selling to a natural person who does not conduct business, the indication GTU_10 will not appear despite the delivery of buildings, structures and land, but the type of sales document type "WEW" will be indicated. There are many such situations, when the recipient (natural person) does not request an invoice, and the only proof of sale will be a notarial deed - a contract of sale. However, if a natural person would additionally request an invoice, then he or she is subject to registration in JPK_V7 and marking with the code GTU_10 (then the indication of the type "WEW" will not apply).

Therefore, taxpayers should remember that where there is an invoice for the delivery of a building, structure or land (regardless of whether it is for a company or an individual), the designation GTU_10 will be used. However, if the delivery takes place without an invoice on the sales contract drawn up in the form of a notarial deed (for a natural person not conducting business activity), the indication WEW will apply and in this case the indication GTU_10 cannot be used.

Advance payment, advance payment and GTU_10

If an active VAT payer receives a payment for future deliveries of goods, then he is obliged to issue an invoice documenting the received amount not later than by the 15th day of the month following the month of receipt of the advance payment.

If an advance payment or a deposit is received for the future delivery of a building, structure or land, the issued advance invoice documenting the receipt of the prepayment should be marked with the GTU_10 symbol.

It is worth noting here that the reservation fee received for the future delivery of a building, structure or land is not subject to VAT, so it is not subject to the necessity to mark with GTU_10 symbol in any way.

This is confirmed by numerous positions of the KIS Directors, and an example here may be the individual interpretation issued by the Director of the Tax Chamber in Warsaw of April 2, 2014, ref. No. IPPP1 / 443-214 / 14-4 / AS.

The delivery of residential premises is not subject to GTU_10

At this point, it is worth recalling the definition of a building or structure from the first part of the publication and quoting the definition of a dwelling from the Act of June 24, 1994 on the ownership of premises.

According to this act, an independent dwelling is a room or a set of rooms separated by permanent walls within the building for permanent residence of people, which, together with auxiliary rooms, meet their housing needs. This provision also applies accordingly to independent premises used for purposes other than residential.

As can be seen, in the acts on building law and ownership of premises, the legislator clearly distinguishes between a building and a flat. It also does it very noticeably in the VAT Act.

This can be seen, for example, in Art. 41 sec. 12 and 12a, in which the legislator significantly distinguishes between buildings and premises:

„The 8% VAT rate applies to:

deliveries, construction, renovation, modernization, thermo-modernization, reconstruction or maintenance works related to buildings or parts thereof included in the construction industry covered by the social housing program;
maintenance works related to residential buildings or their parts, with the exception of business premises or residential premises in non-residential buildings classified in PKOB in section 12 to the extent that the listed works are not covered by this rate pursuant to point 1”.

The construction covered by the social housing program is understood as housing structures or parts thereof, with the exception of commercial premises, residential premises in non-residential buildings classified in PKOB in section 12 and facilities classified in PKOB in class ex 1264 - only buildings of health care institutions providing accommodation services from medical and nursing care, especially for elderly and disabled people, as well as micro-installation referred to in Art. 2 point 19 of the Act of February 20, 2015 on renewable energy sources, functionally related to them.

In conclusion, residential or non-residential premises are neither buildings nor structures, therefore, despite many developers' doubts, the delivery of these premises should not imply the need to use the GTU_10 sign.

The problem of the leasing contract

Many taxpayers' questions concern operational and financial leasing contracts for buildings, structures or land. There is no uniqueness at this point as well. When it comes to operating leasing, the right to dispose of the goods as owner is not transferred, because the lessor is the owner throughout the entire term of the contract.

It is different in the case of financial leasing, where the contract may stipulate that when the building, structure or land is handed over, the right to dispose of the goods is transferred as the owner. In such a situation, at the time of delivery of the building, structure or land, the lessor is obliged to mark the transaction in JPK_V7 with the GTU_10 symbol.

Brokerage services

Many companies provide services consisting in intermediation in the sale of apartments, commercial premises or buildings, structures, land. In this case, it is doubtful whether there will actually be a circumstance that would require the use of the GTU_10 mark on the intermediary.

If an intermediary company only provides brokerage services, it performs the service to the supplier. She does not deliver flats, business premises or buildings, structures, land herself, so there will be no obligation to mark the sale of these services with the GTU_10 symbol.

Transfer of the right of perpetual usufruct of land

Another problem in the delivery of buildings, structures and land that must be marked with the code GTU_10 in the JPK_V7 file is the sale of the right to perpetual usufruct of land.

Pursuant to Art. 7 sec. 1 point 6 and 7 of the VAT Act, the delivery of goods against payment (transfer of the right to dispose of goods as an owner) also includes the transfer of land for perpetual usufruct and the sale of the right of perpetual usufruct. Therefore, the designation GTU_10 is subject to: