Overpayment and request for its declaration

The case law stresses that the law of 29 August 1997 - Tax Ordinance 1 ((c) does not formulate exhaustive definition of the legal concept of overpayment[2]. Subject to Article 72(1) The amount of the overpayment shall be deemed to be: 1) overpaid or unduly paid tax, 2) tax collected by the payer unduly or more than due, 3) liabilities paid by the payer or the collector, where the tax liability decision of the payer or the collector determines them unduly or more than due, 4) liabilities paid by a person third or the heir, if the decision on their tax liability or the decision determining the amount of the tax liability of the heir determines it unduly or more than due.

1. The concept of overpayment

The overpaid benefit occurs when the payment actually made is higher than the amount of the tax liability due. On the other hand, an unduly paid benefit occurs when the taxable person provides a monetary amount, although not obliged to do so, or when a legal title existed at the time of the benefit, but was subsequently revoked[3]. Equally to the overpayment, the so-called family allowance, shown in the statement on income taxes on individuals or resulting from the decision, shall be treated as a family benefit. 4

By means of a redesigned Article 72(2) o.p. (from 1 January 2016, according to the law of 10 September 2015 on amending the Act - Tax Ordinance and some other laws 5 ) the following shall also be treated as an overpayment:

1. the part of the payment that was credited to interest on late payment, if that payment concerned tax arrears;
2. unduly paid:

(a) the arrears in question under Article 52 o.p. (surcharge or refund of tax to be recovered without a call from the tax authority, shown, identified or found unduly or more than due, which are treated as tax arrears) and under Article 52a O.p. (remuneration of payers or collectors to be returned without a call, collected unduly or in excess of due, treated as tax arrears),

(b) interest on late payment on unpaid advances,

(c) the extension fee.

In this context, it is worth pointing out that the excess tax chargeable in the VAT structure is not an overpayment 6 , as was the deposit made by the syndicate to the already existing but unnecessary tax liability, in addition to the order resulting from the approved list of receivables[7].

2. Overpayment arising

According to Article 73(2) o.p. the date on which the overpayment arises should be determined in accordance with the principles of which it is essential to make the date on which the overpayment was incurred dependent on the status of the taxable person of the particular tax.

Table 1. Date of overpayment according to the status of the taxpayer

If the above list does not show the date of the overpayment, then the general rules established will apply under Article 73(1) o.p., from which the article shows that the overpayment arises on:

• 1) payment by the taxable person of an unpaid tax or more than that due,
• 2) collection by the payer of an unpaid tax or more than due,
• 3) payment by the payer or the collector of the claim resulting from the decision on his tax liability, if that charge has been determined unduly or more than due,
• 4) payment by the payer or the tax collector of more than the amount of tax collected,
• 5) payment by the person third or the heir to the claim resulting from the tax liability decision or the decision setting out the amount of the tax liability of the heir, if that charge has been set unduly or more than due.

The overpayment is a specific claim (which has a specific content embedded within a specific obligation relationship between individualised entities) and is therefore subject to enforcement (as opposed to an inalienable overpayment claim). Setting the date of the overpayment is of fundamental importance in such cases – this date sets the moment from which the claim can be seized in enforcement proceedings[8].

3. Determination of overpayment

In principle, the amount of overpayment is determined by the tax authority[9]. However, in these cases under Article 73(2) o.p. (listed next to table no. 1) and under Article 74 The taxpayer shall determine the amount of overpayment. Article 74 s.p. concerns the fact that the following conditions are cumulatively fulfilled:

• 1) overpayment resulting from a decision of the Constitutional Tribunal or a decision of the Court of Justice of the European Union (hereinafter referred to as the TEU),
• 2) the tax liability of the taxpayer arises as provided for under Article 21(1)(1) o.p. (on the date of the occurrence of the event with which the tax bill binds the formation of a tax liability).

In that case, if the taxable person:

1. submitted one the declarations which are worthy. 73 section 2 the amount of the excess payment in the application for reimbursement, or any other declaration resulting in the amount of the tax liability, shall be determined by submitting a revised declaration;
2. is settled by the payer – specifies the amount of overpayment in the application for reimbursement, while giving the statement (declaration) referred to. 73 section 2 point 1 o.p. (annual statement for income tax taxable persons);
3. was not obliged to submit a declaration, specifying the amount of overpayment in the application for reimbursement.
4. Economic burden of overpayment

The issue of the economic burden of overpayment, as the grounds for its existence, is reflected in taxes in which the taxpayer is separated in a material sense from the taxpayer in a formal sense.

In such a case, it is possible for the taxable person, in a material sense, to pay to the taxable person in a formal sense the amount of the tax which, after being transferred to the account of the competent authority, will be regarded as an undue or overpaid amount.

This will be the case, for example, with regard to the use by the taxable person of VAT on goods purchased by consumers or exempt entities of VAT rates 23%, although the rate should apply in this case 8%.

The problem of overpayment in the event of the taxpayer being passed on in the formal sense of the economic burden on the taxpayer in a material sense has been resolved in the controversial resolution of the entire NSA Chamber of Commerce.[10].

The Supreme Administrative Court at the time considered that the condition for the finding of overpayment was that there was a material damage on the part of the person who paid the benefit, even if the benefit was unduly paid.

The assessment of the existence of this condition is subject to the general rules of evidence, and the Authority should collect and assess the evidence collected and submitted by the applicant.

The Supreme Administrative Court based its position on the finding that the legal standard derived from Article 72(1)(1) o.p., using language interpretation only, is incompatible with constitutional regulations.

The absence of a statement by the legislator on ‘deprivation’ as a condition for the determination of overpayment authorised the NSA to address this issue also by means of other interpretations, thus not only linguistic. As a result, the overpayment will not arise if the person who paid it does not suffer direct damage to property.[11].

The controversial resolution remains of great importance for practice. Indeed, the issue of the economic burden requires that an overpayment be established in the course of the procedure. The absence of an economic burden on the overpayment is a condition for reimbursement of the overpayment to be examined by the Authority.

Consequently, the existence of this condition is also subject to review in the course of the administrative procedure, when verifying the legality of the operation of the public administration body[12].

5. Procedure for overpayment

5.1. Entities entitled to apply for an overpayment

The right to apply for an excess payment shall be:

• 1) to taxable persons, a taxable person may apply for an excess tax if he disputes the appropriateness of the payer’s tax collection or the amount of tax collected;
• 2) to payers and collectors, the payer or collector shall be entitled to apply for an excess payment if the tax paid has not been collected from the taxable person;

1. persons who were partners of a civil partnership at the time of the company's dissolution in relation to the company's obligations, the person who was a member of a civil partnership at the time of the company's dissolution is obliged to submit (at the same time as the application for an overpayment):

(a) a revised statement (declaration) regarding the company's obligations; and

(b) the company's current agreement at the date of the company's dissolution;

1. companies which formed a tax-based group of capital within the meaning of corporate income tax rules at the time the group lost its taxpayer status in respect of its liabilities.

According to Article 75(5a) o.p. to persons who were partners of a civil partnership at the time of the company's dissolution, the repayment of the overpayment shall be made in proportions resulting from the right to participate in the profits specified in the contract of the company.

If the attached contract does not result in these interests in profit, the rights to share profit shall be deemed to be equal.

Granting to the shareholders of a civil company the express right to apply for an overpayment in respect of the company’s obligations, after having fulfilled certain conditions, was introduced as a result of the judgment of the Constitutional Tribunal of 10 March 2009 13 , in which the Court found non-compliance Article 75(2)(1) point (b) and section 3 and Article 81(1) o.p.

with Article 2 in conjunction with Article 64(1) The Constitution of the Republic of Poland to the extent that they do not regulate the procedure for submitting a correction of the declaration and the application for the determination of an excess VAT payment by the former shareholders of the dissolved civil partnership which is the taxable person of that tax.

The dissolution of a civil partnership may occur suddenly and prevent the civil partnership's shareholders from establishing an excess tax on that company.

According to the judgment of the Constitutional Tribunal, other applications must be made in the case of commercial passenger companies and capital companies whose design enables shareholders to take action to recover the overpayment before the company ceases to exist.

If the tax law requires a statement (declaration), the taxpayer, the payer or the collector shall, at the same time as a request for an excess payment, submit a revised statement (declaration). It is worth mentioning that from 1 January 2016 correction of the declaration does not require justification[14].

The reasons for the correction in the event of an application for an excess payment will be included in the application for an excess payment. Provision Article 75(2) o.p., concerning the power to apply for an excess payment, shall not apply where tax laws provide for a different tax refund.

The most important exceptions are the specific provisions of the Act of 11 March 2004 on tax on goods and services 15 (Article 87 the VAT Act) on the reimbursement of excise duty or Article 11(1) Act on 9 September 2000 on tax on civil law acts 16 (Further: u.p.cz.c.).

5.2. Recovery of overpayments without decision

According to Article 75(4) o.p., if the correctness of the corrected statement (declaration) is not in doubt, the tax authority shall reimburse the excess payment without making a decision stating the excess payment. In that case, the correction shall have legal effect.

5.3. Recovery of overpayments preceded by a decision

According to Article 75(4a) The tax authority shall determine in the decision establishing the excess payment the amount of the tax liability to the extent that the excess payment is due to a change in the amount of the tax liability. To the extent that the application is unfounded, the authority shall refuse to establish an overpayment.

According to the original wording Article 75(4b) o.p. recipe section 4 (reimbursement of overpayments without a decision) does not limit the possibility of decision-making in a mode Article 21(3) o.p., as notified to the addressee in the decision stating the excess payment.

Such wording led to contradictions — the Authority had competence to repay the overpayment without a decision, from second and, in the same decision, was obliged to inform the addressee of the unlimited possibility of a decision being taken in the mode Article 21(3) o.p.

Under the provisions implementing the National Tax Administration Act 17 amended appeal with section 4 to section 4a, justifying the amendment to the clarification (as a result of the correction) of the reference[18].

It is therefore no longer of any doubt that the obligation to inform in an overpayment decision concerns not the institution to repay the overpayment without issuing the decision but the decision to make overpayment.

It is in that decision that the tax authority determines the amount of the tax liability at the correct level to the extent that the overpayment is due to a change in the amount of the tax liability or a refusal to establish the excess payment.

5.4. Tax control and reimbursement of overpayment

Overpayment proceedings shall not be initiated during the course of the tax investigation or tax review, in respect of the tax liability concerned or the control[19].

A contrario, tax control (tax investigation) may be initiated in the course of an overpayment procedure as well as an overpayment procedure may be initiated during the duration of the tax control (tax investigation) — in respect of tax obligations not covered by tax control (tax investigation). Under Article 79(1) dd.

2 It was clarified that, in the event of the opening of an ex officio tax proceeding in a case in which an application for an excess payment was made, the request for an excess payment was subject to consideration in that procedure.

5.5. Procedure for overpayment and verification of regularity of accounts

It is worth noting that the current form of the procedure on the determination of overpayment is the result of the evolution of case law and the resolution of numerous doubts in the light of the previous legal situation.

Chief Administrative Court in resolution 7 Judges from 27 January 2014 20 stressed that, in the event of an application for an overpayment, the tax authority was not always required to initiate a tax procedure for determining the amount of the tax liability under the Article 21(3) It was not always the applicant’s intention to verify the entire settlement for a given period.

If the applicant made a statement where he corrected the whole or a substantial part of the self-calculation of the tax from which he derived his claim, the tax authority should have initiated proceedings of its own motion to determine the amount of the tax liability.

The Supreme Administrative Court also stressed that the procedure for establishing the excess payment cannot be converted during its duration into a procedure for determining the amount of the tax liability.

In the present case, the tax liability ruling must be taken into account in the subsequent decision on overpayment.

As a result, the NSA adopted a resolution that, in the event of a dispute over the correctness of a revised tax return submitted together with an application for an overpayment, according to Article 75(3) The tax authority is not required to initiate proceedings in each case before examining this application to determine the amount of the tax liability in question.

Under Article 21(3) The comments made above also remain valid on the basis of the current state of the law of play, but find strong legitimacy in the wording of the revised rules.

1. 6. Failure to bind the Authority with ‘partial’ decisions issued by the Authority in the case of overpayment

However, it should be stressed that 1 January 2016 a provision was introduced to the detriment of taxpayers concerning the absence of a "substantial" decision on the part of the body in the procedure for the determination of overpayment.

The finding of overpayment by means of a final decision should, in principle, mean that the authority should be bound by that decision, which, in addition as a final decision, would benefit from the protection provided for by the principle of the sustainability of the final decisions and could only be affected by exceptional procedures.

Currently, a decision on the basis of Article 75(4a) o.p. will not mean not being able to make decisions on the basis of Article 21(3) o.p., in which the body will comprehensively examine the correctness of the settlement for a given period, as expressly stated Article 75(4b) o.p. Decision based on Article 21(3) o.p.

will replace all decisions made on the basis of Article 75(4a) o.p., which does not even guarantee the minimum level of protection for taxpayers and raises legitimate axiological doubts, in particular with regard to the principle of citizens' confidence in the state and the law it provides.

Since the legislator deviates from the principle of the sustainability of decisions in relation to ‘partial’ decisions, there is also a lack of protection provided for taxable persons resulting from the reimbursement of overpayments without a decision being taken.[21].

Regulation remains the only form of protection of the applicant against the consequences of undue return. Article 75(5) o.p., i.e. if the overpayment is reimbursed in the mode in question under Article 75(4) In the case of overpayments, the application shall not be subject to criminal proceedings. fiscal misdemeanour.

6. Jurisdiction of bodies to determine overpayment

The Minister competent for public finances has competence to determine by regulation, on the basis of Article 75(7) o.p., the jurisdiction of the local tax authorities in the matters in question under Article 75(1) In particular, taking into account the type of tax and cases of collection by the payer.

The question of the competence of the authorities in relation to overpayments resulting from the payment service is dealt with in the chapter 5 Regulations of the Minister of Finance from 27 December 2016 on the jurisdiction of tax authorities 22 (Further r.m.f.w.o.p.). Subject to section 16 r.m.f.w.o.p.

to the local tax authorities in cases relating to the determination of an excess tax on a taxable person’s application in the cases in question under Article 75(1) o.p. (questioning the collection of tax by the payer or the amount of tax collected), are:

1) Governors of the tax offices (if taxes, in accordance with separate provisions, are paid to the accounts of the tax offices) due to:

• (a) where the payer is a natural person,
• (b) the address of the payer's place of business if the payer is not a natural person,
• (c) the place of business of the payer where the characteristics cannot be established as indicated in point (b);
• 2) mayor, mayor (President of the city), governor, marshal of the voivodship (if taxes, according to separate regulations, are paid to the JST account) competent for the place of residence or address of the payer.

In the case of VAT and excise duty collected by the payer, the tax authorities responsible locally for the determination of overpayments shall be the tax authorities competent for the taxable person for VAT and excise duty.

In the case of tax on civil law acts and inheritance and gift tax collected by payers, the local tax authorities responsible for the determination of overpayments are competent for this tax.

However, in the case of non-residents, the determination of the local competent authority for the determination of the flat-rate income tax paid by payers shall take account of specific regulations. section 5 section 1 r.m.f.w.o.p. in the field of personal income tax and section 6 section 1 r.m.f.w.o.p. on corporate income tax.

7. Time limit for repayment of overpayment

The time limit for repayment of the overpayment has been regulated under Article 77 o.p. This time limit is 30 days or 45 days or 2 months or 3 months after the occurrence of the events referred to in ap.

In a single case, it was also referred to as ‘quick’ after the expiry of the three-month time limit for the decision (the legislator operates with the phrase ‘without undue delay’ after the expiry of another time limit).

In view of the large casusistic nature of the regulation, the question of the time limit for repayment of overpayment is explained in Table No. 2.

In addition, at disposal Article 77(4) o.p., if no new decision is taken within the time limit three months from:

• 1) repeal of the decision,
• 2) annulment of the decision by the tax authority, or
• 3) to provide the tax authority with a copy of the decision of the administrative court with a declaration of its validity, repealing or annulling the decision
• – the excess amount paid on the basis of the decision repealed or the decision annulled shall be recovered without undue delay.

Available Article 76c The excess payment resulting from advance payments on the tax shall be reimbursed after the end of the period for which the tax is settled. However, if the overpayment is due to an overpayment decision issued in connection with Article 75(1) o.p., reimbursement of overpayment shall take place within the time limit 30 the days from the date of that decision.

An important exception to the above principle of repayment of overpayments resulting from advances after the end of the tax period is Article 77a according to Article 77a The tax authority may, at the request of the taxable person, in cases justified by his or her important interest, reimburse the excess amounts of advance payments for income tax. It should be stressed that this regulation applies only to advance payments for income tax and the reimbursement of the surplus amounts paid has been subject to the determination of the ‘important interest of the taxpayer’.

8. Form of repayment of overpayment

If the taxpayer, payer or collector is obliged to hold a bank account or a cooperative savings and credit account, the overpayment shall only be reimbursed to that account indicated by the taxpayer, payer or collector. In other cases, the refund shall be made to the specified bank account or account in the cooperative savings and credit account of the taxpayer, payer or collector or by postal transfer, unless the taxable person, payer or collector requests a refund of the excess payment in the cashier.

The day of repayment of the overpayment shall be:

• 1) debiting the bank account of the tax authority on the basis of a transfer order,
• 2) postal transmission,
• 3) payment of the amount of the excess payment by the tax authority or placing the excess payment at the disposal of the taxable person at the cash register.

An overpayment, the amount of which does not exceed twice the costs of a reminder in enforcement proceedings, if no account to be reimbursed is indicated, shall be reimbursed at the cashier. The costs of the reminder may not exceed four times the costs of service of the reminder as registered consignment (Article 15(4) dd.

2 Act on 17 June 1966 on enforcement proceedings in the administration 23 ). The amount of this fee was fixed in the Regulation of the Minister of Finance from 11 September 2015 on the amount of the costs of the reminder sent by the creditor to the debtor before the administrative execution 24 is 11.6 PLN.

If the amount of overpayment does not exceed 23.2 PLN (twice the costs of the reminder in enforcement proceedings) and where no account to be refunded is indicated, the excess payment shall be reimbursed only at the cashier. The excess refund due by postal delivery shall be reduced by the cost of reimbursement.

These regulations shall apply mutatis mutandis to:

• 1) Legal successors and persons third,
• 2) persons who were partners of a civil partnership at the time of the company's dissolution,
• 3) companies that formed a tax-based group of capital within the meaning of corporate income tax rules at the time of the loss of taxpayer status by that tax-based group.

According to Article 77c o.p. the excess payment resulting from the correction of the personal income tax return shall be reduced by an amount corresponding to the excess amount transferred to the public benefit organisation in accordance with the taxpayer’s request referred to in the separate provisions, above the amount rounded to the full tens of groszy down 1% the tax due resulting from this correction. That provision shall apply mutatis mutandis to overpayments resulting from decisions.

9. Interest rate on overpayment

Available Article 78 In principle, overpayments are subject to an interest rate equal to the basic rate of interest on late tax arrears. At the date of drawing up this publication, the interest rate on overpayments shall be 8%.

Overpayments whose amount does not exceed twice the cost of a reminder in enforcement proceedings shall not be subject to interest. Twice the costs of the reminder on the day of publication are 23.2 PLN. Under Article 78 o.p.

in a very causistic way, cases where interest rates on overpayments are due and the time limit on which interest rates should be charged are indicated. The conclusions of the analysis of the provision are set out in the table below.

Table 3. Time limit on which the interest rate on overpayments is calculated

Overpayment interest shall be due:

• 1) until the date of repayment of the overpayment,
• 2) until the date on which the overpayment is credited to outstanding or current tax liabilities,
• 3) until the date on which the application for overpayment for future tax obligations is lodged, subject to the procedure for overpayment arising from the judgment of the Constitutional Tribunal or the judgment of the Court of Justice.

In this context, it is worth noting that, in the case of a breach of the time limits set out above by the Authority, the overpayment is due from the date of the overpayment and not from the date of the failure. It also shows that overpayment may exist but is not always subject to interest.

Case referred to in 77 section 1 points 4 and 4a o.p., it has been regulated in a specific way by making the interest rate period dependent on the date on which the application for an excess payment was made. In that case, interest shall be payable for the period of:

1. from the date on which the overpayment is due until the date on which it is reimbursed, the interest shall be calculated on the date on which it is reimbursed, provided that the taxable person submits a request for reimbursement before or within the time limit 30 days from:

(a) the entry into force of the judgment of the Constitutional Tribunal,

(b) publication of the operative part of the judgment of the Court of Justice in the Official Journal of the EU or

(c) in which the normative act has been repealed or amended in whole or in part;

1. from the date of the overpayment to 30. on the date of entry into force of the judgment of the Constitutional Tribunal, the publication of the operative part of the TEU in the Official Journal of the EU or the date on which the act was repealed or amended in full or in part, the interest shall be calculated within the time limit indicated above if the request for reimbursement has been lodged after the expiry of the period referred to above. 30 days from the date of occurrence of the abovementioned events.

Available Article 78a If the amount of the tax refund paid does not cover the amount of the overpayment and its interest rate, the refund shall be calculated proportionally against the amount of the overpayment and the amount of its interest rate in proportion to the amount of the overpayment remaining on the date of the refund. This is a regulation analogous to Article 55(2) o.p.

10. Overpayment

Overpayments, together with their interest rates, shall be credited ex officio to:

• 1) tax arrears including interest on late payments,
• 2) interest on late payment on unpaid advances on tax,
• 3) the costs of the reminder; and
• 4) current tax obligations.

In the absence of the above-mentioned obligations, the overpayment shall take place ex officio. However, reimbursement of overpayment ex officio has been excluded in the event that the taxable person submits an application for overpayment in full or in part to future tax obligations[25].

According to the view expressed in the caselaw with Article 76(1) It is clear that in the event of overpayment and tax arrears, the Authority is required to make an appropriate crediting, regardless of the party's wish to recover the excess payment[26].

It is worth pointing out that the tax authority in its own right examines the state of the taxpayer's obligations only at the office where the overpayment or reimbursement arose. However, it does not impose any obligation to seek other existing tax arrears.[27].

Provision Article 76(1) also does not provide for a limitation on the payment of the tax remaining in the jurisdiction one the tax liability body in the jurisdiction of another authority, since it would be unjustified to differentiate taxpayers by applying the criterion of the tax involved which is the subject of the application for overpayment[28].

In particular, the conditions for applying the deduction should not be passed on to the conditions for overpayment, as overpayments are not subject to a deduction against a public debt, but to a ‘calculation’ against a specific claim.

In line with the view expressed in the case-law, there are no obstacles to overpayment of the tax left in the jurisdiction one the body (e.g. personal income tax) has been included in the tax liability of another authority (e.g. property tax).

In such a case, the authority in whose jurisdiction the tax liability in which the overpayment is incurred shall be required to make a decision on the refund. However, the Authority must be aware of the existence of this claim and no provision requires the Authority to seek other than the tax arrears it knows.

These overpayment rules shall apply mutatis mutandis to overpayment:

• 1) the payer or collector for his tax arrears, current tax obligations or obligations arising out of the performance of the duties of the payer or collector,
• 2) the civil liability of the shareholders or former shareholders of that company, except that in the case of an existing company this requires the consent of all shareholders.

As already mentioned, overpayments, unlike an inalienable overpayment claim, are subject to seizure in enforcement proceedings. In the event of an overpayment claim having been seized, prior to the exercise of that charge, it shall be the first priority to pass the excess payment on:

• 1) tax arrears including interest on late payments,
• 2) interest on default referred to in the decision referred to under Article 53a O.P., and
• 3) current tax obligations.

In cases of overpayment of outstanding and current tax obligations, a provision is issued for which a complaint is made. In the case of overpayment of tax arrears, the provisions concerning the proportional calculation of the overpayment of tax arrears and the amount of interest on late payment, as well as the overpayment of the tax, shall apply mutatis mutandis from the earliest payment obligation, unless the taxable person indicates the obligation to be credited.

Overpayment against tax arrears shall, in principle, be credited on the date on which the application for an excess payment is made. However, overpayment shall take place on the date of the overpayment in the cases in question under Article 73(1)(1-3) and 5 O.P., this is:

• 1) payment by the taxable person of an unpaid tax or more than due;
• 2) collection by the payer of taxes which are not due or greater than those due;
• 3) payment by the payer or the collector of the claim resulting from the decision on his tax liability, if that charge has been determined unduly or more than due;
• 4) payment by the person third or the heir to the claim resulting from the tax liability decision or the decision setting out the amount of the tax liability of the heir, if that charge has been set unduly or more than due.

Overpayment shall take place on the date of the overpayment also in the cases mentioned under Article 73(2) o.p., that is to say, where:

• 1) annual statements – for income tax taxable persons,
• 2) submission of an annual declaration — for taxable persons of a special hydrocarbon tax,
• 3) declarations of excise duty – for taxable persons,
• 4) declarations of payments for the financial year for single-member companies of the State Treasury and state-owned enterprises,
• 5) quarterly declaration for VAT – for VAT taxable persons making advance payments on this tax.

The order is therefore merely a declaratory one – confirms an event which occurred by law[29].

11. Tax refund

Subject to Article 3(7) The tax refund shall mean the refund of the difference in tax or the refund of input tax within the meaning of the VAT rules, as well as other forms of return provided for in the tax legislation. Other forms of tax refund are, for example, the reimbursement of tax on civil law acts or the reimbursement of excise duty in question. Under Article 82 Act on 6 December 2008 on excise duty 30 (Next: u.p.a.).

According to Article 76b The following provisions shall apply to the tax refund:

• 1) Article 76 o.p. – on overpayment;
• 2) Article 76a o.p., concerning the form of the settlement of the overpayment, the timing of the overpayment and the proper application of the provisions on the payment of principal arrears and interest on late payment;
• 3) Article 77b o.p. – on the form of recovery of overpayment;
• 4) Article 79 (p) to prohibit the opening of an overpayment procedure and the revocation of the right to establish an overpayment;
• 5) Article 80 o.p. – concerning the expiry of the right to a refund.

Credit in question under Article 76a(2)(1) The application shall be made as from the date of submission of the return declaration or correction of the return declaration.

It is worth pointing out that the above directory does not refer to Article 78(1) o.p., which represents an interest rate on overpayment. The amounts of excise duty to be recovered were therefore not subject to interest until the date of entry into U.P.A. (on 1 January 2013) specific regulation Article 82(6a) u.p.a. 31 . Due to the lack of specific rules, there is still no interest rate on the tax on civil acts to be recovered on the basis of Article 11 U.P.C. 32 .

12. Overpayment in new project Tax Ordinance 33

New project Tax Ordinance (Further: N o.p.) assumes a general redevelopment of the overpayment rules. Under N o.p., the rule is to reimburse or make credit without making a decision.[34].

The Authority shall issue a decision on the excess payment only if the excess payment has been determined unduly or at an incorrect amount in the declaration or application for an excess payment[35]. The explanatory memorandum to Project N o.p.

emphasises that the changes introduced have given up the breakdown into decisions determining the excess payment (issued ex officio) and stating the excess payment (at the taxpayer's request)[36].

In addition, a regulation clearly specifying the effects of the partial applications was introduced, in which case part of the amount of the tax liability is set out in the decision and the remainder in the declaration made by the taxable person.

Other proposed amendments include, inter alia, clarification of the definition of overpayments, the introduction of an element of unwarranted enrichment as a condition which eliminates the possibility of recovery, the harmonisation of reimbursement and interest rates of overpayments, and the harmonisation of the rules on overpayment against tax arrears. The purpose of the amendments is to make the difficult tax institution, which is overpayment, more readable to taxpayers and tax authorities[37].

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