From 28 years it is practiced to add tax on goods and services to a notarial tax. Meanwhile, there are reasonable doubts as to whether this is lawful and does not violate citizens' rights," emphasises the Ombudsman, Marcin Wiązek. According to the VAT Finance Ministry, the remuneration of notaries should not be added and the change of this practice depends on the Justice Ministry.
Marcin Wiązek therefore asks for the position of Minister Zbigniew Ziobra. He asks whether complaints have been brought to the MS and whether the ministry sees the need for legislative action.
Previous actions of the RPO
The practice of notaries adding tax on goods and services to the notarial tax is investigated by the RPO.
There are reasonable doubts as to whether the practice of adding VAT to a notarial tax is lawful and consequently does not affect the rights of citizens using notaries
12 May 2021 He asked the President of the National Notary Council if the Council had reached a position on the matter. In response, 12 October 2021 the President of the CoR explained that the practice of notaries collecting remuneration at the rates laid down by the Minister of Justice and adding to such calculated remuneration the tax on goods and services continues continuously from 28 years.
According to the KNN, it was not contested by tax authorities or notaries. By using analyses commissioned by the KRN, it was found that the arguments of the RPO were missed, and the practice used by notaries is confirmed by legislation (e.g. in the Goods and Services Tax Act).
After that 15 November 2021 The RPO addressed the position to the Minister of Finance.
MF: VAT is included in the notary price
In response, 1 April 2022 The ministry has been informed that it maintains the position expressed in explanations for Infor.pl. It states that the Minister of Justice’s regulation 28 June 2004 on the maximum rates of notarial tax - issued on the basis of Article 5(3) Act on 14 November 1991 The notarial law - does not allow any possibility for notaries to increase the maximum rates of notarial tax for VAT. This means that this tax is already included in the price given to the parties by the notary.
In addition, it was clarified that the tax authorities' verification of the VAT charge for notarial service salaries led essentially to the conclusion that this tax was added to the tax amount. In addition, it has been noted that, for the vast majority of notaries, they do not apply the maximum rates of notarial tax for transactions of higher value, so that the fees charged by them together with the added VAT do not exceed the maximum rates.
The Ministry also noted that the rules only regulate the calculation of the taxable amount for VAT purposes. The basis for VAT on notarial activities is generally the remuneration collected, less the amount of VAT.
At the same time, the ministry does not see the possibility of issuing a general interpretation of the remuneration of notaries for services rendered. He pointed out that the Ministry of Justice was competent in the case.
RPO: Expanding interpretation - unacceptable
On the one hand, to the explanations of the President of the National Court Register therefore indicate that VAT should be added to the notarial tax, second Whereas it is contrary to the view of the finance department that the tax on goods and services should not be added to the remuneration established by the notary with the parties.
There are therefore reasonable doubts as to whether the practice of adding VAT to a notarial tax is lawful and consequently does not affect the rights of citizens using notaries.
In the opinion of the RPO, the linguistic interpretation of the Law on notarials and the regulation on the maximum rates of the notarial tax does not allow for an increase in the remuneration of the notary for VAT. The contrary would constitute an unacceptable interpretation extending the provisions governing the remuneration of the notary.
And in the resolution of 26 June 2014 (reference no. III CZP 27/14) The Supreme Court stressed the guarantee and protective function of regulation introducing a maximum rate of notarial tax. This clearly distinguishes the way a notary's remuneration is shaped from that of a lawyer. This is a reasonable argument against the admissibility of adding VAT to the remuneration of the notary.