Need for a definition of structures under tax law

Ombudsman Adam Bodnar called on the Minister of Finance in his general address 1 , in order to create a new, precise and clear definition of the structure, which does not raise any doubt about the taxation of the property. This. fifth RPO occurrence 2013 About that.

The analysis of complaints coming to the Ombudsman shows that the definition of this concept so far is the cause of many tax disputes and an increase in the number of cases in administrative courts.

The Ombudsman also points out that the guidelines set out in the Constitutional Court’s judgment of 13 September 2011 2 , to develop such a new definition for tax purposes.

1. Introduction

The reply of the representative of the Ministry of Finance led the RPO to another speech 3 for a parliamentary interpellation 4 , concerning the change of content Article 1a(1)(2) Act on 12 January 1991 on local taxes and charges 5 (Further: u.p.o.l.), which contains a disputed definition of structures.

According to that provision, a building is a building within the meaning of the provisions of the building law which is not a building or a small architecture, and a construction equipment within the meaning of the building law relating to a building which ensures that the facility can be used as intended.[6].

The interpreter recalled that according to Article 1a(1)(1)) u.p.o.l.

building is a building within the meaning of the provisions of the Act of 7 July 1994 construction law[7] (Further p.b.), which is permanently connected to the ground, separated from space by building partitions, and has foundations and roofs, and indicated that “it is necessary to determine whether a building is a building or a small building of architecture, and it is only later possible to consider its qualification as a building category.

No building must be a building at the same time, and no building must be a building at the same time (...)’. According to Article 3(3) p.b.

Non-building buildings or small architectures include free standing, permanent advertising boards and advertising equipment, earthworks, hydrotechnical, tanks, free standing industrial installations or technical equipment, sewage treatment plants, landfills, building parts of technical equipment (e.g.

boilers), machinery foundations and equipment as technically distinct parts of objects consisting of the usable whole.

The MP pointed out that the result of the qualification of a given facility is the application of the appropriate method of calculating the amount of the property tax and asked questions in his interpelling, among others, whether an autonomous definition of the structure should be developed for the purposes of u.p.o.l.; does not the reference to the provisions of p.b.

in the definitions of the building and structures contained in u.p.o.l. undermine the trust in the rationality of the legislature due to difficulties in understanding the legal text?

2. Consistent Position

Constitutional Court 13 September 2011 divided the assessment of the requesting court (WSA in Gliwice; the case concerned a difficulty in determining whether the facilities and equipment in the underground mining excavation or also the same excavation are subject, on the basis of the u.p.o.l., to taxation of the property as a building), that Article 2(1)(3) with regard to Article 1a(1)(2) u.p.o.l.

is an indefinite and vague provision that prevents taxable persons from determining the content of the tax obligation. According to the Constitutional Tribunal, ‘a set of definitions of the terms ‘construction object’, ‘building object’, ‘building object’ and ‘small architecture object’ are raised together.

On the one hand, by a building should be understood as building, building and small architecture, with second And the building and the building are characterized directly, and the object of a small architecture is supposed to be a building. The definition of the term “building” in p.b.

is [...] of the nature of the partial scope definition.’ The best solution is to draw up autonomous definitions for u.p.o.l.

— ‘open definitions of the terms ‘building’ and ‘building equipment’, as set out in p.b., which are acceptable on the grounds of p.b., cannot, due to the prohibition of interpretation per analogy to the detriment of the taxpayer, be applied in the same way, i.e. fully under tax law’.

In turn, in the judgment of 13 December 2017 TK ruled 8 (The case concerned taxation two telecommunication containers as business-related buildings), that Article 1a(1)(2) u.p.o.l.

in so far as it allows recognition as a building structure that meets the criteria for building is incompatible with the principle of specificity of danin regulation[9].

The Constitutional Court considered it necessary to comply with the constitutional requirements laid down in the judgment of the Constitutional Tribunal of 13 September 2011, while maintaining the position concerning the clarification by the legislator of regulations p.b. and u.p.o.l.

Filip Dawn, Undersecretary of State in the Ministry of Finance, in response to the above-mentioned interpelation 29822, He said, among other things, that "it should be stressed that the MF presented a clear position on the taxation of buildings. It indicated that the construction works which meet the criteria for the existence of the building referred to in Article la section 1 point 1 u.p.o.l. must always be treated as buildings, not as buildings.

The opposite interpretation of tax authorities, confirmed by administrative courts, was made in contradiction to the literal wording of the rules (...). Given the complexity of the issue and the lack of a draft version of the Urban-Building Code (...), it is not expected that the draft law on the revision of the definition of buildings will be addressed to the Council of Ministers in the near future.’

The response to the appeal did not satisfy the RPO, which in his speech indicated that “on one hand, the imprecise legislation is” strongly hampered by economic activity in sectors such as mining, telecommunications and energy. On the other hand, Whereas the lack of clear definition of the subject matter of taxation concerns tax authorities, in particular mining municipalities, which have faced the need to reimburse multi-million-dollar property tax amounts with interest."

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