A fairly important and still current problem is the obligation to pay the tax fee on a substitution mandate. Tax Charge Act and Regulation of the Minister of Finance dated 28 September 2007 on the payment of the tax levy (Journal of Laws of 2007, item 1330, hereafter referred to as ‘the Regulation’), it does not answer the question whether, in the case of a substitute power of attorney, a tax fee should be paid on both proxies (the original and the replacement power of attorney), or only on one of the documents submitted.
According to Article 1(1)(2) Act dated 16 November 2006 on the tax fee (Journal of Laws of 2012, item 1282, as amended), hereinafter referred to as ‘u.o.s.’, a revenue charge from a substitute power of attorney shall be made subject to the submission of a document stating the granting of a power of attorney or a prosecutor or his copy, or a copy thereof, in a case relating to public administration or in judicial proceedings.
Polish institutions before which power of attorney and substitution powers are submitted, in connection with the activities carried out, seem to ‘not notice’ the interpretation of the Minister of Finance from 2014
General interpretation of the Minister of Finance – an attempt to clarify doubts
The problem with the imposition of tax charges on the submission of a substitute mandate was to be addressed by the general interpretation of NR PL/LM/835/77/EOB/2014/RD-91893 Minister of Finance dated 13 October 2014 on the tax charge on the submission of a document stating the granting of a power of attorney or a prosecutor.
According to the information provided in this interpretation, for several proxies resulting, for example, from the vertical structure of the undertaking, or from the granting of a substitution, the tax charge is to be submitted only to the last document stating the granting of the power of attorney, on the basis of which the proxy will act in the case in the name and with direct legal effect to the powerholder. It follows from this finding that, in the event of a power of attorney and a substitute power of attorney, the fee should be payable only to the latter.
Administrative jurisprudence refers differently to the issue of the tax charge from the submission of power of attorney and substitution power. According to the Supreme Administrative Court dated 18 February 2014, reference no. II FSK 444/12 the granting of a substitute power of attorney shall not benefit from the exemption from payment of a tax fee on the submission of such power of attorney [1] . It can be noted here that the issue of the position by the then Minister of Finance took place after the judgment.
Practical problem
The above-mentioned discrepancy between the position of the then Minister of Finance and the case-law of administrative courts leads to discrepancies in practice.
Polish institutions before which power of attorney and substitution powers are submitted, in connection with the activities carried out, seem to ‘not notice’ the interpretation of the Minister of Finance from 2014 Many times, in particular from public administration offices, it can be heard that "the obligation to pay a double tax fee for a power of attorney and a substitute power of attorney is required by law". On the other hand, Some professional representatives rely on the content of the general interpretation of the Minister of Finance from 2014
Officials may also make the initiation of a given proceeding or the performance of a given activity (e.g. the issue of a document) dependent on the immediate (executed at the time of the submission of the power of attorney) presentation of proof of payment of the tax charge on the power of attorney and on the substitute power of attorney.
The question here is what constitutes the legal basis for such proceedings. According to the article. section 3 section 1. The power of attorney shall attach proof of payment of the tax fee due, or a certified copy of the proof of payment, no later than within 3 the days from the time of the obligation to pay it.
However, according to Article 6(1)(4) u.o.s. the obligation to pay the tax charge on the power of attorney arises when such a document is deposited with the public administration, court or entity other than the government and local government administration, in connection with the performance of public administration tasks.
In view of the above-mentioned differences in interpretation concerning the obligation to pay a fee on a substitute power of attorney, there is no doubt that this should be clearly explained by the legislator.
[1] Legalis number 909319
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.