Changes and discrepancies in administrative court rulings following the Constitutional Court ruling on tax on revenue from undisclosed sources of revenue or non-disclosed sources of coverage.
Issued 18 July 2013 judgment of the Constitutional Court (hereinafter: CCC, Court) (reference no. SK 18/09) raised and continues to raise many doubts, thus affecting the diversity of the case law of the Administrative Courts.
In order to remind you, the Court ruled that the Constitution of the Republic of Poland was incompatible Article 20(3) Act dated 26 July 1991 on personal income tax (Journal of Laws of 1991, item 350 Next: the Personal Income Tax Act) as applicable from 1 January 1998 to 31 December 2006 However, it is worth noting that the effects of the ruling will undoubtedly have a significant impact on interpretation Article 20(3) as it stands, since, in the explanatory memorandum of the judgment, the Constitutional Tribunal stated: ‘However, the judgment in question does not refer to Article 20(3) u.p.d.o.f.
in its current wording, the provision under consideration shall bear, in a similar, if not identical, degree, the same deficiencies as the reason for the declaration of unconstitutionality of its previous version.’ In recent months, the Administrative Courts, on the basis of the above-mentioned rulings, have dealt differently with cases relating to complaints against judgments imposing a sanctioning tax rate on revenue from undisclosed sources of revenue or which are not covered in the disclosed sources.
The tendency of decisions is to abrogate complaints and to re-examine them. This was the solution adopted by the Supreme Court in its judgment dated 13 August 2013 (reference no.
II FSK 2295/11, II FSK 2296/11, II FSK 2327/11, II FSK 2370/11) deciding on a cassation complaint against the judgments of the Provincial Administrative Court in Lublin (reference no. I SA/Lu 865/10, I SA/Lu 25/11, I SA/Lu 24/11 , I SA/Lu 26/11). Also to be reconsidered under the judgment dated 6 August 2013 (reference no.
I SA/Wr 485/13) issued by the Provincial Administrative Court in Wrocław, the case of the complaint was addressed to the decision of the Director of the Tax Chamber in Wrocław (secret meeting) connected with the undisclosed source of income for 2007, on the grounds of its decision: ‘At this point it must be pointed out that, although the judgment of the Constitutional Tribunal in question relates to the legal situation prior to the 1 January 2007, It is the NSA's view that, in the composition of the case, the constitutionality of the provision Article 20(3) u.p.d.o.f.
done by the Court, may not be disregarded on the grounds of the case in question.
This is justified by the amendment of the provision Article 20(3) u.p.d.o.f., which took place on the day 1 January 2007, it was merely an orderly nature and in no way affected the existing construction of this provision and did not eliminate doubts about its constitutionality.
Thus, the NSA took the view that the Article 20(3) u.p.d.o.f., by the Constitutional Tribunal in judgment of 18 July 2013, reference no. 18/09, must also be included in the case 2007”
The Provincial Administrative Court in Gorzów Wielkopolski (hereinafter: WSA) ruled differently because of doubts about constitutionality Article 20(3) the Personal Income Tax Act as follows: 2007. In the order of 3 October 2013 (reference no.
I Sa/Go 336/13) The WSA addressed the following question to the TK: ‘if Article 20(3) Act dated 26 July 1991 on personal income tax (Journal of Laws of 2012, item 361 as amended), in the wording given Act dated 16 November 2006 amending the Personal Income Tax Act and amending certain other laws (Journal of Laws, item 1588 as amended), is compatible with Article 2 with regard to Article 64(1) Constitution?’ The WSA suspended the administrative proceedings concerning the taxpayer’s complaint against the decision of the Director of the Tax Chamber on flat-rate personal income tax for 2008 from non-recovery income in disclosed revenue sources according to the Article 125(1)(1) Act dated 30 August 2002 – Law on proceedings before administrative courts (Journal of Laws of 2012, item 270 as amended) making the case subject to the outcome of the proceedings before the Constitutional Tribunal.
Recently, the Supreme Administrative Court has taken the liberty of interpreting the judgment of the Constitutional Tribunal (reference no. SK 18/09) and settling the case in a way which seems to be contrary to the idea of a ruling on the unconstitutionality of the law established by the Constitutional Tribunal.
NSA in judgment dated 17 October 2013 dismissed the cassation complaint concerning cases of reference no.: II FSK 2413/11, II FSK 2322/11, II FSK 2598/11 and II FSK 2426/11 indicating that the judgment of the Constitutional Court of 18 July 2013 The above NSA argued that the TK sought to ensure that the effects of its judgment did not relate to the past and had acted since the judgment was delivered in the Official Journal of the Laws.
As you can see, despite the ruling of the Constitutional Tribunal, the taxpayer still cannot be sure how the court will deal with his case.
one is certain, without doubt, about the case of the Constitutional Court's judgment and the determination of the income tax on undisclosed sources of revenue or non-recovery in revealed sources will still be made public.