In the first part of the article was discussed the general characteristics of the rule in dubio pro tributario. The content and application of this section will be further highlighted Article 2a Tax Ordinance. It should be pointed out that the criterion that does not remove doubts about the content of tax legislation is highly imprecise and provokes excessive freedom in its application.
This rule is a kind of guideline of the legislature, created to interpret any doubts, ambiguities and gaps in tax law for the benefit of the taxpayer, whose unclear provision is directly concerned.
However, the legislator has not defined the procedures and rules for the interpretation of tax law, which consequently leads to the conclusion that the under Article 2a Tax Ordinance the guidelines are in principle impossible to achieve due to the nature of tax law (more on this subject and on the constitutionality of the legislation in question in: H.
Dzwonkowski, Legal opinion on compliance with the Constitution of the Republic of Poland presented by the presidential bill amending the Act Tax Ordinance and some other laws, Warsaw 2015).
Another issue which raises doubts is the possibility of applying the in dubio pro tributario rule both as regards legal doubts and doubts about the facts.
The fact that the application of the in dubio pro tributario rule is limited to legal doubt has been confirmed by the Minister of Finance in the general interpretation on the uniform application of the rule Article 2a. "However, it cannot be argued that the reverse standard applies to the removal of doubts concerning the facts.
Proper application of the provisions Tax Ordinance concerning tax proceedings and, in particular, the rules governing the taking of evidence should ensure that the examination of the facts which leads to the finding of facts in the case and which have not occurred."
In spite of the above, there are also judgments of the courts that it follows that "the principle that doubts about the content of tax legislation cannot be removed in the interests of the taxpayer should also apply to the removal of doubts as to the facts" (e.g. NSA) dated 24 February 2017, II FSK 139/15.
It should be added that the NSA has also aligned the importance of the in dubio pro reo rule, both for legal doubts and for the actual nature of the case. For example, in the judgment dated 22 February 2011 on reference no.
II FSK 223/10 The NSA ruled that ‘the principle in dubio pro tributario, established in the tax procedure by content Article 121 Act dated 29 August 1997 Tax Ordinance, not only does it not require the taxpayer to interpret the provisions of law (material and procedural) in the application of the law, but it also refers to factual doubts, as does the principle in dubio pro reo in criminal law.
Thus, any doubts relating to evidence and factual findings should be interpreted in favour of taxpayers."
However, in practice, the application of the "new" rule is unfortunately not common. Until now, only a small number of judgments have ruled that in a given case, taxpayers have challenged the tax interpretation by referring to Article 2a Tax Ordinance, in fact, the rules and jurisprudence in a given matter are inconsistent and doubts cannot be removed – which resulted in a judgment in favour of the taxpayer.
Author:
Piotr Bachnik
Attorney at the law firm Russell Bedford Poland, affiliated with the company since February 2016.
He holds legal education, graduated from the Faculty of Law and Administration of the University of Warsaw and graduated from the Italian and European Law School at the Warsaw University of Warsaw, together with the Faculty of Law of the University of Catania, Italy. In years 2014-2016 worked at Maminski & Partners.
He specializes in criminal law, judicial enforcement and civil law. He speaks English with legal terminology.