The relevant vacatio legis of the tax law in the light of the legislative procedure of the so-called Polish Deal

According to the view presented by the Constitutional Tribunal, the minimum period of vacatio legis in the case of tax laws should not be less than one month. However, this view should be reviewed in the light of the changes made in the so-called framework.

‘Polish Deal”, because, given their complexity and, above all, their unfavourable nature to a large part of taxpayers, it is unacceptable that even the behaviour of the monthly vacatio legis by the legislator will allow the principle of trust in the State and its law to be fulfilled.

The corresponding vacatio legis (from Latin resting or idle bill) is one from the basic guarantees for the implementation of the Article 2 The Constitution of the principle of trust in the State and its law.

During the period between the adoption of the law and its entry into force, a citizen should be guaranteed sufficient time to understand the content of the provisions in force and to adapt to the amended or introduced legal standards.

This adjustment has a particular legal significance for traders and the obligations imposed on them under tax law.

Legal basis of the institution vacatio legis

Vacatio legis is defined as the period between the official publication of the normative act concerned and its entry into force (the beginning of the standards laid down therein)[1].

Issues relating to the publication of legal acts at the statutory level are regulated In the Act dated 20 July 2000 announcement of normative acts and certain other acts[2].

It sets out rules and procedures for the publication of normative acts and certain other acts and rules and procedures for issuing official journals 3 , since the publication of a normative act containing rules of law which are common in the official journal is compulsory[4].

The law itself directly refers to vacatio legis institutions and states that normative acts, which contain rules which are common in force, published in official journals, enter into force after the expiry of fourteen the days from the date of their publication, unless the normative act concerned specifies a longer period.

5 It follows from the above standard that an order addressed to the legislator should at least expire from the date of notification of a normative act containing provisions which are common until the date of entry into force of the provisions 14 days.

However, there is an exception to this rule that, in justified cases, normative acts, subject to section 3, may enter into force less than fourteen days, and if the important interest of the State requires the immediate entry into force of the normative act and the principles of the democratic rule of law do not prevent it, the date of entry into force may be the date of publication of that act in the Official Journal.[6].

As pointed out by Judge Marek Safjan in a separate sentence to the Constitutional Court judgment dated 3 November 2006 K 31/06: when shortening the period of vacatio legis, the constitutional value associated with vacatio legis must yield to a different constitutional value, not to facts or events of a non-constitutional but political nature[7].

Finally, it should be pointed out that in exceptional cases, the legislator may even decide that the new legal standards will be retroactive. According to the law on the publication of the normative acts, the abovementioned provisions do not exclude the possibility of giving retroactive effect to the normative act if the principles of a democratic rule of law do not prevent it[8].

In conclusion, it should therefore be pointed out that vacatio legis is governed by the laws of the legal rank, which are, however, secondary to the rules of the Constitutional Tribunal which are derived from the Constitution of the Republic of Poland.

9 , It is clear that the fundamental principles in these matters arise not from the abovementioned provisions, but from the case law of the Constitutional Court.

It has developed constitutional standards, with the support of the representatives of the law, to which it belongs not only to order the introduction of normative acts into force after the expiry of the appropriate period of vacatio legis, but also criteria for determining which period would be appropriate in the case in question[10].

Principle of trust in the State and the law it provides

From the date of the adoption of the existing Constitution of the Republic of Poland, it is assumed that an order to establish an appropriate period of vacatio legis is based on such elements of the rule of law expressed under Article 2 The Constitution of the Republic of Poland, as the principle of citizens' trust in the state and the law and the principle of correct legislation as well as in principle of the protection of acquired rights, but it has a broader scope from it[11].

Mr Safjan pointed out the importance of the principle of trust in the State and its law, stressing that the principle of trust was recognised as the foundation of the rule of law.

According to the CCC, the principle of citizens' trust in the state and its law, also referred to as the principle of state loyalty to citizens, is one from the most important derivatives principles resulting from the principle of a democratic rule of law (see e.g. TK out of 20 December 1999, K 4/99, OTK 1999, No 7, item 165; W.

Sokolewicz, Article 2, in: Garlicki, Constitution, t. 5, p. 33). 12

Similarly, it should be accepted that the principle of trust also involves an order for appropriate vacatio legis.

In the judgment of 22 September 2005 (KP 1/05, OTK-A 2005, No 8, item 93) The TK recalled that the order to preserve the relevant vacatio legis constitutes one the standards which are based on the content of the principle of a democratic rule of law and are directly based on the principle of trust in the State. Dec.

On 12 December 2012 (K 1/12, OTK-A 2012, No 11, item 134) The TK concluded: The order to preserve the appropriate vacationis legis – the period of "resting" the law, separating the publication of the act from its entry into force - falls within the principles of correct legislation and results from the principle of trust in the state and the law which it provides, and its purpose is to provide the addressees with the right of time to adapt to the amended regulations and to take the appropriate decisions on the follow-up procedure (e.g.: 15 December 1997, K 13/97, OTK -A 1997, No 5–6, item 69, 4.1.2000 R., K.

18/99, OTK 2000, No 1, item 1). Different vacatio legis will be appropriate for different regulations. The examination of constitutionality in this respect follows a casu ad casum.

The ‘responsibility’ of vacationis legis should be considered in the context of the possibility for the addressees of the new rules to be familiar with the content of the new rules and to manage their cases with regard to them (Case. TK of 11 September 1995, P 1/95, OTK 1995, No 1, item 3).

The final evaluation depends on all circumstances, including the subject matter and content of the new standards, as well as the circle of entities concerned by the established standards (so-called TK with: 20 December 1999, K 4/99, OTK 1999, No 7, item 165; 31 January 2006, K 23/03, OTK-A 2006, No 1, item 8; 20 January 2010, KP 6/09, OTK-A 2010, No 1, item 3)[13].

The above considerations remain valid on the basis of the problem under consideration as to what period of vacatio legis is appropriate for such a large tax reform as it represents Polish Deal. It cannot be excluded that the length of the vacatio legis has a significant legal significance, as the Constitutional Court has repeatedly pointed out.

Vacatio legis tax laws in the light of the case law of the Constitutional Court

Tax laws due to their specific scope of regulation have been the subject of consideration by the Constitutional Court to the extent appropriate for those vacatio legis.

Judgment dated 15 February 2005 on reference no.: K 48/04 The Constitutional Court has ruled that there is no Article 2 Constitution of the Republic of Poland implementing provisions fourth the level of the tax scale, due to the lack of adequate vacatio legis.

In its statement of reasons, the Constitutional Court stated that: by subjecting the constitutional compatibility assessment Article 9 Act in so far as it concerns the date of entry into force Article 1(13) The Constitutional Court's amendment legislation reiterated once again the position expressed in the previous case law that in the assessment of the constitutionality of tax legislation the starting point is the view of the relative decision-making freedom of the legislature in shaping the revenue and expenditure of the state (cf.

the judgment on the reference no. K 13/01), Recalling that this freedom is balanced and moderated by the legislator's obligation to respect the procedural aspects of the democratic rule of law (Article 2 The Constitution), and in particular the principles of correct legislation.

Legal certainty and the related principle of legal security is of particular importance in the law governing public tributes. In increasing the burden of danin, it is appropriate to provide for a period of at least one month until a reasonable regulation with its interests (see judgment of 18 December 2002, reference no. K 43/01, OTK ZU No. 7/A/2002, item 96).

The Constitutional Court recalls that the appeal in the case at issue is not the legal system, but the date of entry into force of the provisions concerning 50% the tax rate. The constitutional review of these provisions was therefore limited to proceedings before the Court.

In view of the importance which for the interests of taxpayers was to establish 50% tax rate, date of entry into force of these provisions as at 1 January 2005 in the light of the fact that they have only been announced 13 December 2005, caused the formation of too short a vacatio legis. This violates the principle of trust in the state and the law which it provides and is therefore incompatible with Article 2 Constitution.

In the judgment dated 27 November 1997 14 The Constitutional Court pointed out that: when it comes to tax legislation, it has already been pointed out in the Constitutional Court’s previous case law that it is not, in principle, acceptable to modify the tax burden during the year (order from 29 March 1994, K. 13/93, OTK In 1994, p. I, p.

49-50.) Such changes, when it comes to the current formation of personal income tax, should enter into force at least one month before the end of the previous tax year (order of 28 December 1995, K. 28/95, OTK ZU No Regulation (EU) 3/1995, p. 204-205).

These are not mandatory requirements, but they can only be waived if there are legitimate legal arguments to do so."

In the light of the considerations put forward, it should be pointed out that in the case of tax laws for appropriate vacatio legis, I am taking the period "at least one month.

However, the fact that at least one month's period of vacatio legis tax law is not absolute – in this respect it should be recalled, the judgment of 18 November 2014, K 23/12, OTK-A 2014, No 10, item 113 15 , in which the Constitutional Court argued that it did not decide to recognise the unconstitutionality of the mineral tax law because of the provision for it 14-daily adjustment period (Article 27 The Law on the Tax on Mines) whose ‘propriety’ may give rise to some doubts because of the introduction of new tax charges in such a short period of time, which may have led to difficulties in preparing for the taxpayer to bear them.

The Court pointed out that such a short vacatio legis of the contested law was not an optimal solution in the context of constitutional requirements. However, this defect has been balanced by the importance of the fiscal function pursued by the Law on Excise Tax.

In addition, the weakening of the argument concerning the too short vacatio legis was influenced by the fact that the draft Law on the Tax on Mines influenced the Sejm 19 January 2012 and was treated almost three months.

Thus, the recipients of the regulations were given the opportunity to familiarise themselves with the proposed solutions before the publication of the Act in the Official Journal of the Law and thus to adapt to the new legal regulations, despite the short 14-the day-to-day vacatio legis, however meeting the requirements of correctness in typical circumstances.

Of course, the duration of the legislative procedure, by nature, must not affect the calculation of the vacatio legis of a given normative act, calculated from the date of publication in the official journal.

However, it may be an additional argument in favour of a standard solution for the designation of a "preply period" which excludes the need to treat the standard in a privileged manner in the context of its entry into force.

However, the Constitutional Court's view that the publication of the draft law and the duration of its proceedings would affect the possibility of the taxpayer to prepare for the new legal regulation, even as an ancillary argument, should be considered controversial. In this regard, it should be recalled that, at the time the law is passed by Parliament, the addressee of the law is not sure whether the law will enter into force at all and in what form, and in such a situation it cannot be expected from the taxpayer that it will begin to prepare for changes in the law, in principle entail additional costs, without knowing in what shape these changes will be passed.

In conclusion, the above part of the considerations, it should therefore be considered that tax laws should, in principle, be introduced as a minimum monthly period of vacatio legis.

However, it should be recalled that these rulings concerned changes in public tributes for a relatively narrow audience – as fourth The level of tax scale and in principle did not affect the tax system as a whole.

The question therefore has to be answered as to whether, in the case of a bill which introduces a number of changes to the tax system affecting all taxpayers, a monthly period of vacatio legis is also sufficient.

Polish Deal changes in tax laws

Act dated 29 October 2021 on the amendment of the Personal Income Tax Act, the Corporate Income Tax Act and some other laws is a number of changes to the laws introduced by the legislature – in the case of the tax part, as the government emphasizes: in order to create a friendly and equitable tax system that will allow Poland to take a dominant position in the race for investment, which is the result of the process of changing global supply chains[17].

Changes in the package Polish Deal in the area of taxation, they are very extensive, as they are based on 226 pages, indicating the abundance of matter that cover their range.

In the tax area, it should be pointed out that changes affect 18 :

• • Personal Income Tax Act – 21 areas of change,
• • Corporate Income Tax Act – 18 areas of change,
• • The flat-rate income tax Act on certain income generated by individuals — 5,
• • Goods and Services Tax Act – 4 areas of change,
• • Tax Ordinance – 2 areas of change,
• • National Tax Administration Act – 3 areas of change,
• • Special Economic Zones Act and New Investment Support Act – 1 the area of change.

In view of all the above, the total number of amendments were amended. 22 applicable laws[19].

Although this calculation is of a very general nature, it illustrates the scale of the changes that entered into force.

The justification for the bill shows that it is estimated that for 24,000,000 Polish tax changes will be beneficial or neutral (90% taxpayers) – so far for 10% The changes will be unfavourable to taxpayers and the changes themselves will affect all taxpayers.

Examples of changes that have been introduced by the tax part Polish Deal, is:

• • increasing the tax-free amount by increasing the tax-lowering amount to 5,100 PLN 20 ,
• • excluding the possibility for the taxpayer to deduct the health contribution from the tax of the entrepreneur 21 with the introduction of the so-called "mid-class credit" 22 ,
• • introduction of the powers of officers of the National Tax Administration to carry out the so-called checking acquisition 23 , as a mechanism to verify that taxable persons comply with, inter alia, the obligation to record sales through register offices,
• • revenue tax on companies showing low profitability or losses[24].

In order to obtain an answer to the question whether a monthly vacatio legis is appropriate for the legislator to maintain the constitutional requirements for acting in compliance with the principle of the citizen's trust in the State and their rights, the scope of the proposed amendments should be aligned with the time remaining for the addressees of the legal standards laid down or amended, necessary to familiarise themselves with and adapt to them.

Nor can it be taken into account that the tax rules introduced are complicated for the average entrepreneur. It is worth noting that the tax system in force in Poland is one the most complex of OECD countries, and the Polish tax system is less competitive than the Italian tax system alone[25].

The tax ruling of an individual institution cannot be disregarded either.[26].

In accordance with the provisions governing the institution of individual interpretation, at the request of the person concerned, the Director of National Tax Information shall issue in his individual case an interpretation of the provisions of tax law, while complying with the individual interpretation before its amendment, the declaration of its expiry or before the tax authority receives a final copy of the ruling of the administrative court repealing the individual interpretation, shall not harm the applicant, nor shall it be taken into account in the settlement of the tax case.

As a result of the amendment, a number of individual interpretations have lost their protection and taxpayers are required to consider further requests for individual interpretation.

Accordingly, in the author’s assessment of the bill known as Polish Deal, the maintenance of the monthly period of vacatio legis does not comply with the principle of the citizen's trust in the State and the law it provides.

The following follows from the fact that the conduct of an appropriate vacatio legis cannot be considered merely as a formal element of the legislative process, but has a specific purpose of enabling the addressee of the proposed legal standard to be familiar with it and to take appropriate measures to adapt to the proposed legal changes.

There can be no doubt that the possibility of actually getting to know the content of the new rules in the case of such a large project as the draft law on Polish Deal and their adaptation within a monthly period may be considered only in terms of legal fiction.

By the way, it should be noted that in the course of the work on the bill in the Senate, an amendment was proposed to postpone the entry into force of part of the Act for January 2023, but the amendment was rejected[27]. In the course of work on the draft law on Polish Deal Therefore, the issues concerning the relevant vacatio legis of the law were raised, but for some reasons the legislator did not decide to change the proposed vacatio legis.

In the author's opinion, the annual vacatio legis would constitute an appropriate period between the adoption of the law and its entry into force. The annual period would allow the addressees of legal standards to be familiar with the changes made and prepare for new regulations, as well as what is very important – to obtain appropriate tax rulings – both general and individual, which would at least potentially prevent taxpayers from misinterpreting new regulations.

It should also be borne in mind that, in addition to the guarantee of the citizen's trust in the state, there is another principle of ignorance iuris nolet and this one will certainly be strictly enforced.

Conclusion

Out of Article 2 The Polish Constitution The principle of trust in the State and the law which it provides one from the foundations of the democratic rule of law. The guarantee nature of this principle is expressed, inter alia, in the vacatio legis institution ordering the legislator to pass laws with a duly deferred deadline for their entry into force, which in principle amounts to 14 days from the date of publication of the Act in the Official Journal of the Acts.

The jurisprudence of the Constitutional Tribunal has developed even stricter standards concerning the relevant vacatio legis in the event of the adoption of laws relating to tax matters, including in particular taxes due to the State, since in the case of such laws, a period of time of not less than that of the relevant vacatio legis one month.

This vacatio legis institution aims to safeguard the interests of the addressee of the legal standards in such a way that he will have the right time not only to get acquainted with the passed changes in the law, but also to implement the appropriate actions which will enable him to adapt to the law which is in force.

The so-called Act. Polish Deal in the tax aspect, it is largely the redesign of the current tax system in Poland and although it concerns all citizens, it has the greatest impact on those engaged in economic activity.

The monthly period of vacatio legis in the author's assessment will not comply with the principle of trust in the state and the law it provides. In case of Polish Deal the period of rest should be no less than one year and this would be an appropriate period for the adaptation of the new legislation.

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