On 13 December 2017 The Constitutional Court issued a judgment (reference no. SK 48/15), in which he ruled unconstitutional Article 1a(1)(2) Act of 12 January 1991 on local taxes and charges, in so far as this provision makes it possible to recognise as a building of such a building which at the same time meets the criteria for being a building referred to in Article 1a(1)(1) that bill.
What does that mean? For the majority of taxpayers, probably not much, but for those entities that own, for example, transformers or telecommunications stations and have taxed so far by establishing a tax base for these facilities as the rules provided for the structures – this is really an important issue.
How is the building different from the building in the context of the establishment of the tax base for the property tax? Well, how is he challenged?
Article 1a(1)(2) the building is a building within the meaning of the provisions of the building law which is not a building or a small architecture, as well as a construction equipment within the meaning of the building law which provides for the possibility of using the building as intended; and the building is a building within the meaning of the building law, which is permanently linked to the ground, separated from the space by means of a partition, and has foundations and roof.
In practice, however, it happens that the building can be qualified as a building at the same time as a building. Until now, however, the case law has consistently been in the direction that objects in the form of transformer or telecommunications stations cannot constitute buildings.
In particular, because they have a specific purpose and contain devices, which deprives them of the building's characteristics. Thus, the only right way to tax such stations was to tax buildings.
Importantly, at this point, it should be pointed out that, in accordance with the provisions of the cited law, a tax on the structure may be charged many times higher than the building, since it must take into account the value of the said equipment filling these facilities.
The property tax calculated for the building is calculated on the basis of its area, and for the building on the basis of its value and may be equal to 2% of this value.
Thus, it is not difficult to imagine that by placing these transformers or telecommunications stations, their owners did not only bear the cost of building and equipping them with expensive equipment, but also paid a much higher tax (such stations usually have a relatively small area).
However, the door to recover the overpaid tax has now opened.
What are the consequences of the Constitutional Court's ruling? First of all, it provides a basis for taxpayers to resume proceedings concluded by final decisions of the tax authorities and judgments of administrative courts under which the owners of the premises concerned paid tax as calculated from the construction.
The time limit for the action of the taxable person shall be: one month (for cases completed by decision) or 3 months (for cases concluded by judgment) from the date of entry into force of the judgment, the Constitutional Court.
So we've been counting it since the day 27 December 2017, when this judgment was published in the Official Journal of the Republic of Poland.
Furthermore, taxpayers who have overpaid the property tax by charging it for the objects in question, such as buildings and not buildings, should consider submitting an application for reimbursement of their overpayment. The time to make decisions is extremely short , because in this case the time limit is very short . 30 the date of publication of the judgment of the Constitutional Court.
In conclusion, owners of facilities such as in particular transformer or telecommunications stations should consider submitting requests for reopening proceedings. However, we are talking only about these objects, which at the same time meet the condition to recognise them both as a building and as a building.
As the Constitutional Court pointed out, in the absence of clarity of the provisions, "In no case can functional argument, including prescriptive argument, be made in the light of requirements arising from Article 84 with regard to Article 217 Constitution – to increase the responsibility of the individuals.
In fact, the State's power of dan is balanced in a formal sense by imposing on the legislator an obligation to make clear the rules it provides in this regard." Consequently, any interpretation of the rules should take place in favour of the taxable person, in particular one which imposes a tax obligation on him.
Of course, each situation requires an individual approach and analysis, in particular with regard to the amounts in question and the periods for which a possible refund of the overpaid tax is due.
Author:
Ewa Miszczyk-Wróbel
Lawyer. Expert of non-standard business solutions, author of legal concepts implementing complicated business assumptions of entrepreneurs.
She graduated in law from the Faculty of Law and Administration at the Jagiellonian University in Krakow, followed by Postgraduate Studies in Copyright, Publishing and Press Law at the Institute of Intellectual Property at the Jagiellonian University in Krakow, as well as numerous specialist courses and trainings.
He is a legal advisor in the District Chamber of Legal Advisors in Krakow.
He has many years of professional experience gained in a renowned law firm specialising in the service of foreign entities, a stock exchange joint stock company operating in the modern technology and IT industry, pharmaceutical wholesaler and medical device manufacturers.
From 2010 is engaged in the continuous operation of large-scale projects and in support of labour agencies operating on the domestic and foreign markets. Specializes in company law (transformation processes, M&A, decommissioning), construction law and labour law.
She is involved in pro bono activities, has repeatedly supported the Kraków OIRP in organised legal aid actions for those in need, and has also supervised the labour law department in the WIOSNA Association in Krakow.