The Ombudsman may join the civil proceedings. Such an intervention is statistically unlikely, but some are lucky enough that the RPO interferes in their conduct and helps to win the case despite adverse settlements in previous stages. one of such cases has been described on the RPO website.
The procedure was carried out on the basis of provisions that are no longer in force, but the conclusion may have a much broader application. The NSA took a position on the boundaries of the notion of error made by the Authority. It is clear from the NSA ruling that an authority's error can be made not only by action but also by omission.
A key issue was the possibility of applying a higher rate of duty to past claims. This would be impossible if the Authority were to consider that it had made a mistake.
The trader applied a duty rate of 0%, And the authority didn't question that. He then considered that the rate was appropriate 20% and at the same time requested retroactive payment (against claims already settled at the rate 0%). The entrepreneur disagreed. He felt that the Authority had made a mistake by omission, i.e. not questioning too low a rate.
The Authority was in turn of the view that the error on its part could only be referred to in the event of action rather than omission. The case went to the administrative court. The WSA divided the position of the body, but at the next instance the Supreme Administrative Court took a different position for the benefit of the entrepreneur.
The Ombudsman argued that the regulations in question were intended to guarantee the certainty of trade in goods and should therefore be interpreted in this direction.
The interpretation used by the Authority and subsequently accepted by the WSA could undermine the demand for economic certainty. The entrepreneur could settle the tax using all the required procedures and, after a few years, find out that he has to pay extra.
Source: www.rpo.gov.pl
Author:
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Paweł Kula
From 2016 related to Russell Bedford Poland. Graduate of law studies, Tax Advisor No. 12969. Specializes in excise duties and transfer pricing documentation. Author of tax-related articles published on industry websites.