The Supreme Administrative Court in its seven-member resolution advocated a reduced, 5-percent VAT on take-out sales in systems such as drive in, walk through, in-store and food court. He stressed that tax authorities had to interpret the law by using a linguistic interpretation. The taxpayers cannot guess what the legislature might have meant.
As stated in the resolution of the Supreme Administrative Court (reference no. I FPS 1/24), in fact and in law from 24 June 2016 to 30 June 2020 the supply of meals and dishes by the taxpayer in systems such as ‘drive in’, ‘walk through’, ‘in-store’ and ‘food court’ (in the part where the sale was carried out ‘to-go’) must be taxed at a reduced rate 5% based on Article 41(2a) Act on 11 March 2004 on tax on goods and services (Journal of Laws of 2016, item 710 as amended) with regard to item 28 Annex 10 to this bill.
The resolution was prompted by the NSA's interpretation problems, which emerged from a cassation complaint from the judgments of the WSA in Poznań.
NSA after diagnosis 16 January 2024 appeals of the Director of the Chamber of Tax Administration in Poznań from the judgments of the Provincial Administrative Court in Poznań from 5 May 2023 (reference no.
I SA/Po 82/23 and I SA/Po 222/23) concerning VAT decided to submit to the warehouse for settlement seven NSA judges a legal issue with serious doubts.
This issue concerns whether, in fact and law, 24 June 2016 to 30 June 2020 the supply of meals and dishes by the taxpayer in systems such as ‘drive in’, ‘walk through’, ‘in-store’ and ‘food court’ (in the part where the sale was carried out ‘to-go’) must be taxed at a reduced rate 8% based on Article 41(2) and Article 146a(2) VAT Act in connection with section 3 section 1 point 1 and item 7 (III.
Services. Food services - PKWiU ex 56) Annex to the Regulation of the Minister of Finance from 23 December 2013 on goods and services for which the rate of duty on goods and services is reduced and the conditions for applying reduced rates.
second The question concerns the answer to the question if the answer to first the question would be negative, whether the supply of meals and dishes can be classified as PKWiU 10.85 and consequently apply a reduced rate to them 5%, based on Article 41(2a) VAT Act in connection with item 28 Annex 10 to this law, although it is related to the PKD class 10.85, which includes the production of prepared meals and dishes, frozen or in cans, consisting at least of two the various ingredients which are packed and labelled for sale and that this subclass does not include the preparation of meals for direct consumption classified in the relevant subclasses section 56.
In its oral justification, the NSA strongly emphasised that the taxpayer should derive his rights and obligations from the laws and that he is not obliged to analyse classification standards.
There is no obligation to consider whether an analysis of another standard included in another classification is still necessary to determine the standard included in the classifications. The legislator cannot require too much from the taxpayer. The NSA pointed out that the objectives of PKD and PKWiU are different.
The Court of First Instance stressed that for a non-statistician, it does not have to be clear that the provisions of the PKD define the scope of the various economic activities and should be explicitly referred to the conceptual scopes of the PKWIU groupings for VAT purposes.
The NSA stressed that tax authorities had disregarded the PKD classification until the Minister of Finance gave the general interpretation. It was only after this interpretation that the authorities changed their position.
The NSA also pointed to the principle of in dubio pro tributario, recalling that any doubts should be settled in favour of the taxpayer. He also stressed that tax authorities are required to apply a linguistic interpretation. Other interpretations are auxiliary. Tax payers are to have confidence in and adhere to the legal standard, not what was possibly intended by the legislature. There is a requirement for legal certainty.