In March of this year, Members of the Polish Parliament Paweł Kobyliński, Jerzy Meysztowicz and Paweł Pudłowski addressed the Minister of Development and Finance with an interpelling concerning the application of the clause of settling doubts arising from unclear tax laws in favour of the taxpayer.
This principle applies from 1 January 2016 by provision Article 2a Tax Ordinance, which orders to settle in favour of a taxable person without removing doubts as to the content of the tax legislation.
According to the information contained in the interview, the taxpayers sent to the tax authorities 262 Proposals for the interpretation of the tax legislation in which they referred to this clause. Tax authorities only in seven they referred to the taxpayer's objections to the clause, in any case in a negative manner.
In their inquiry to the Minister of Finance, Members raised issues concerning:
- • Quantities of fiscal checks carried out since the introduction of the indubio pro tributario principle;
- • Failure to include the clause in the proposals considered despite various judicial decisions, which may imply ambiguity of the rules;
- • Plans for the control of the implementation of the rule of doubt in favour of the taxpayer in the Tax Offices;
- • Government actions to activate the existing clause.
In response to the questions raised in the interpelling, the Minister of Finance stresses that the application of the clause in dubio pro tributario contained under Article 2a Tax Ordinance is justified only if the doubts arising from the provisions cannot be removed through the interpretation process of the law or when the linguistic, systemic and intentional interpretation does not produce satisfactory results. The position presented by the Minister for Development and Finance should therefore be understood as meaning that the in dubio pro tributario clause will only be applied in situations where persons acting on behalf of tax authorities have doubts as to the applicable tax law in a given case.
With regard to the failure to include the clause in the conclusions based on an argument of the various court rulings, which may be an example of ambiguity of the rules, the Minister of Finance notes that the tax authorities could have assessed negatively each of the letters considered because they considered that the inequality did not relate to the same factual and legal situation.
In addition, the tax authority does not have to accept the taxpayer's request if, in the light of similar facts, different judicial decisions have arisen as they may result from evidence. Consequently, the tax authorities considered that the conditions for applying the principlein dubio pro tributario had not been met, since this clause concerns the content of legislation which, in the view of the tax authorities, did not raise doubts in these cases and could have been due to the facts.
In providing clarifications to the questions asked, the Ministry of Development and Finance stated that since the entry into force of the provision introducing the principle of tax authorities’ doubts in favour of the taxpayer had been carried out 9,855 control procedures.
From the further content of the reply to the parliamentary appeal, 2017 no controls related to the implementation of the in dubio pro tributario principle in tax authorities are planned.
In order to activate the abovementioned principle, according to the Minister of Finance, his actions are based on the objective of ensuring uniform application of tax law by tax authorities by ex officio interpreting them. Within these actions 29 December 2015 General Interpretation No. PK4.8022.44.2015 on the application Article 2a Act on 29 August 1997- Tax Ordinance, which allowed for the harmonisation and proper understanding of the principle in dubio pro tributario beneficial to taxpayers.
Author:
Sonia Żupa
Junior Tax Consultant. A student of law and administration at the University of Silesia, she actively gained professional experience taking up practices in public and private associations and organizations. Currently practicing in the Katowice office Russell Bedford Poland. Her professional interests are tax law, especially in the area of transfer prices. He is fluent in English.