24 February A landmark judgment of the Constitutional Court was published for many economic operators. Its operative part may affect the rules of taxation on property, land, buildings and structures owned by entrepreneurs.
Judgment of the Constitutional Tribunal (reference no. SK 39/19) was declared incompatible with the Constitution Article 1a(1)(3) Local Taxes and Charges Act (Journal of Laws of 2021, item 401), that the mere possession by the entrepreneur of a building, land or structure prejudges that they are used for business activity.
According to the judgment in question, the above presumption resulting in a higher rate of taxation of assets which, for different reasons, cannot be or are not used for business activity constitutes an infringement Article 64(1) Constitution. Consequently, such a tax liability becomes a disproportionate burden for the taxpayer. According to T, the mere fact that an entrepreneur owns a property cannot prejudge the use of the property for business activity.
Since the Constitutional Court's ruling concerned a constitutional complaint by a natural person who is an entrepreneur, the question is quite obvious: what about legal persons? Is it possible to differentiate taxpayers on the basis of their legal entity? The Supreme Administrative Court in its judgments of 4 March 2021 (Act No.
III FSK 895-899/21) He quickly dispelled the doubts and went one step further – he applied a pro-constitutional interpretation of the judgment of the Constitutional Tribunal, balancing the opportunities of real estate owners who are legal persons.
Consequently, traders, both natural persons and legal persons, have the possibility to reduce tax claims from assets not used in business activities.
The position of the Constitutional Tribunal may have a positive effect on the property situation of entrepreneurs, as taxpayers with such properties may benefit from the possibility of paying a lower tax rate, which is covered by properties not used for business activity and, in the case of buildings, may not pay tax at all, since such taxes are covered by buildings for business purposes.
Without any doubt, it is worth examining the assets already, as entrepreneurs have a new opportunity to reduce their tax liability or recover any excess tax.
For more information please contact us.
Author:
Darya Bannaya
Younger tax consultant. Graduate of Law at the Faculty of Law and Administration of the University of Warsaw, graduate of Global Business, Finance and Management in Warsaw School of Economics. Winner of the Ministry of Finance competition “Tax to Leaders” 7. edition. Conducting trainings and conferences for foreigners in tax aspects of conducting and establishing business in Poland.
He specializes in tax law, advising clients on current matters relating primarily to income taxes.
Author and co-author of a tax law publication.