On 3 July 2025, the Ministry of Finance published draft tax explanations regarding VAT within the new deposit-return system. The system is intended to promote the recycling and reuse of beverage containers, such as glass and plastic bottles and cans. Does the draft, which is now open for consultation, address all the key issues that taxpayers and businesses subject to the new obligations have asked for clarification on? Let’s take a look.
VAT on deposits for unreturned packaging
Deposits for unreturned packaging are subject to VAT at the same rate as the beverage sold in that packaging. This means that the VAT rate is not determined separately for the deposit; it is the same as that applied to the beverage itself.
Reporting in JPK_V7M and JPK_V7K
Deadlines:
- Monthly filings: JPK_V7M for January
- Quarterly filings: JPK_V7K for the first quarter
Where to report:
- Tax base and output VAT: fields P_15 to P_20 (according to the product’s VAT rate)
- The total amount of unreimbursed deposits: the new P_360 field (reduces tax liability)
Record part of JPK_VAT:
- Tax base and output VAT: fields K_15 to K_20
- Total tax: field K_360
- Document designation: “WEW”
Change from 2026
For taxpayers who file monthly tax returns, the first accounting for tax for 2025 will be made in the February 2026 return (deadline: 25 March).
Surplus returned packaging
If more packaging items or waste are returned to the system than were placed on the market, no VAT liability will arise. Such surpluses are not considered sales and are therefore not taxable.
The surplus can be reported in the return for:
- The first taxable period of the following year
- Subsequent years (if the surplus remains)
Condition: The value of the deposit for packaging placed on the market must be lower than the total value of the deposit for packaging returned with a surplus from the previous year.
There is no separate field on the JPK_VAT form for reporting surpluses. The surplus is only reported when accounting for the year in which a shortage occurs.
In practice, therefore, taxpayers will be forced to wait until the following year to account for such a surplus.
Right to deduct
Taxable persons will not be entitled to deduct VAT on the packaging deposit, as it is refundable and can be recovered at any time and from any collection point, without proof of purchase being required.
According to the Ministry of Finance, there is a risk of abuse due to the inability to verify the return of packaging and the recovery of the deposit. This is why the regulations do not allow for the deduction of VAT on deposits.
Information about the deposit on the invoice
The Ministry of Finance states that, as the collection of deposits at any stage of the supply chain is not subject to VAT, a VAT invoice is not required, although information about the deposit can be included as an additional item on the invoice. A corrective invoice is not required for the return of packaging or packaging waste.
However, there are still no clear guidelines on whether and how deposits can be included on fiscal receipts. This important issue needs to be clarified.
Key areas of the deposit-return system are still awaiting resolution
Although the draft explanations issued by the Ministry of Finance address many issues important to taxpayers, many key issues remain unresolved
Furthermore, some issues that have been raised by the business community for a long time have been omitted or, in our opinion, addressed incorrectly.
Flawed design of the tax base
The Ministry of Finance has confirmed its interpretation of Article 29a(12c) of the VAT Act. According to this interpretation, entities that place products in packaging covered by a deposit-return system on the market must increase the VAT base at the end of the tax year if the number of returned packaging items is lower than the number of packaging items placed on the market.
In our opinion, this approach is contrary to the fundamental principles of the deposit-return system and stems from the flawed structure of the provision that defines the tax base. Furthermore, it could lead to the taxation of transactions that do not constitute sales and do not generate revenue for the taxable person.
In accordance with Article 29a (12c) of the VAT Act:
“If packaging or packaging waste covered by a deposit-return system is not returned to the representative entity, the entity that placed packaged beverages on the market shall increase the tax base as of the last day of the year by the difference in the value of the deposit resulting from the packaging covered by the deposit-return system and placed on the market by that entity in the given year, and the packaging or packaging waste covered by that system and returned to the representative entity in the same year. This difference shall include the amount of tax.”
According to the definitions in Article 8(21a) and (24) of the Packaging Act, ‘placing on the market’ can include importing and storing beverages in packaging that is covered by the deposit-return system. Therefore, ‘placing on the market’ is much broader than sale. However, even if these beverages are not offered to consumers, placing them on the market will affect the VAT base, even if no deposit is collected (as this is collected at the time of sale). In such a situation, the packaging cannot be returned, which goes against the deposit-return system’s mechanism.
As a result, the provision may lead to situations where an entrepreneur:
- Is required to pay VAT on a deposit that was never collected
- Did not receive any revenue from it
- The packaging may never have reached the consumer (i.e. the person who could have returned it)
This leads to a fictitious increase in the tax base that does not reflect actual economic events.
For instance, a deposit assigned to warehouse packaging could be subject to VAT simply because the packaging has not been formally ‘returned’ to the system, despite never leaving the company’s internal circulation.
In our opinion, the current wording of the provision poses a serious risk of violating the fundamental principles of VAT taxation within the deposit-return system.
This issue should be addressed as a matter of urgency in any further work on the system and in the Ministry of Finance’s final explanations.
Risk of double taxation in the case of gratuitous transfer of packaging or packaged products
In accordance with Article 8(6a) of the Packaging Act, a deposit must be collected when a product is sold, i.e. when ownership of an item is transferred in exchange for payment.
Meanwhile, Article 29a(12c) of the VAT Act links the obligation to increase the tax base to the mere placing an item on the market, which includes gratuitous transfers.
Importantly, the deposit is a gross amount, which means that it is inclusive of VAT.
In practice, this means that a taxable person who provides products covered by the deposit-return system free of charge may find themselves in a situation where:
- They will incur the cost of the deposit (the gross amount, including VAT), even though they neither had the right nor the opportunity to collect it (for example, because they provided the products as part of promotional or sponsorship activities)
- If the packaging is not returned, they will be obliged to increase the VAT base by the value of the deposit, even though they did not receive any revenue from it
Consequently, the taxable person will bear a double VAT burden:
- The cost of unrecovered deposits
- Increased tax base
These risks were reported by businesses and industry organisations during consultations on the deposit-return system. Unfortunately, the Ministry of Finance’s draft explanations do not address these risks; therefore, they need to be supplemented urgently.
No liability on the part of the representative entity for failure to provide or incorrect provision of information
In respect of VAT, the deposit-return system introduces a new mechanism for separating the roles of the taxable person and the remitter. This solution is new in the context of VAT, but it is already used in income tax, where it involves protective mechanisms for taxable persons. Remitters have information obligations, and failure to comply results in penalties (e.g. for the late or inaccurate filing of the PIT-11 return). This protects taxable persons from the consequences of other people’s mistakes.
However, there are no such mechanisms in the deposit-return system.
The regulations impose penalties on entrepreneurs for failing to provide data on packaging turnover, or for providing incorrect data. However, no liability is imposed on representative entities. The problem is that the entity placing products on the market has no real control over the data collected by the representative entity, even though it is on the basis of this data that their tax liabilities are calculated.
Consequently, an entrepreneur may be penalised for the errors of the representative entity, despite being blameless. This imbalance in penalties raises serious doubts as to the principle of equal treatment of parties.
In practice, this means that a taxable person may be unable to account for VAT correctly due to errors made by other system participants over whom they have no control. The lack of symmetry in terms of penalties means that those placing products on the market may bear the entire risk.
In our opinion, it is reasonable to introduce mechanisms similar to those applicable to income taxes. This would involve imposing an obligation to inform on representative entities, along with liability for failure to comply. Only such a solution can provide businesses with a minimum level of legal security and protect them from the consequences of errors made by other system participants beyond their control.
Conclusions: MF explanations only provided in the final days, despite ample time
The regulations are due to come into force on 1 October 2025, yet businesses only received the draft tax explanations three months before the deadline.
Although the draft was intended to dispel doubts, there is still a lot of uncertainty. The implementation of the system involves high operating and tax costs, and many key issues remain unresolved.
The regulations are vague (e.g. the definition of a retail entity remains unclear), and businesses are solely liable for all fiscal matters, despite lacking the necessary tools to fulfil their new obligations effectively.
This is yet another instance of costly and complex regulations that entail a significant financial burden coming into force without adequate preparation and with minimal advance notice.
Businesses will have to account for VAT in a new, complex system that raises more questions than it answers. The obligations are real and onerous, liability is absolute, and clear rules are still lacking.
Any questions? Contact us
Sławomir Wnuczek
Arkadiusz Kępka
