The Marshal of the Sejm addressed the Government's draft Act on the amendment of the Agricultural Tax Act, the Act on Local Taxes and Fees and the Forest Tax Act to Parliament. The purpose of the amendments is to clarify the rules on the taxation of land used by the entrepreneur in connection with the placement of infrastructure for the transmission and distribution of liquids, steam, gases or electricity and telecommunications infrastructure.
The Act clearly states that the placement of the above-mentioned infrastructure on non-entrepreneurs' land, which includes this infrastructure, does not alter the way these land is taxed as occupied for business activity.
In this way, the legislator wants to resolve the problem of the unequal application of tax law in the field of taxation of the abovementioned land. In this field there are numerous disputes between taxpayers and tax authorities. It's mostly people's land. third and forest land owned by State Forests, located under overhead power lines.
These areas in one municipalities are taxed on forest tax and in another on property tax. Consequently, a higher rate of tax is applied to real estate related to business activity.
In this regard, the administrative courts have recently developed a fairly unfavourable line for taxpayers, which states that the land on which the above-mentioned infrastructure has been planted should be a property tax tax at the highest rate foreseen for the land occupied for business activity.
Such an approach results in a significant increase in the tax burden for owners, holders or users of perpetual land through which this infrastructure operates. To better illustrate the problem, just look at the tax rates.
In the year 2018 for forest tax they are 0.0043 PLN/m2, for agricultural tax 0.026 PLN/m2, Whereas for the property tax this is 0.91 PLN/m2.
The Act clearly states that the placement of the above-mentioned infrastructure on non-entrepreneurs' land, which includes this infrastructure, does not alter the way these land is taxed as occupied for business activity.
In the explanatory memorandum to the bill, the drafters refer to the Constitutional Court ruling dated 12 December 2017 reference no.. SK 13/15, according to which the ratio of the application of the increased rate (real estate tax) is a potential possibility of obtaining revenue from the use of the land in question (...).
Therefore, it would be extremely unfair to charge the landowners on which the transmission infrastructure is situated at the tax rate applicable to the real estate occupied in business.
In most cases such infrastructure has a negative impact on the value of the property, its aesthetic value and in some ways limits the possibility of using the land.
In addition, the provision of infrastructure for the transmission or distribution of liquids, vapours, gases or electricity and telecommunications infrastructure typically entails a restriction of ownership of the land owner.
Such infrastructure may also be planted against the owner's will (for example, in the case of the establishment of the service of transmission by the court).
Even in the case where the establishment of transmission service is carried out for remuneration, it has a compensation function and is intended to compensate for the loss of property value. This approach is supported by the Supreme Court’s ruling dated 20 September 2012 reference no.
IV CSK 56/12, in which the Court of First Instance held that the amount of compensation should depend on the assessment of the damage resulting from the installation of industrial equipment on the property.
The purpose of the amendments is also to protect the interests of the users of network services, in particular final consumers, from the increase in the fees for telecommunications services or distribution services provided to them, or the transmission of fluids, steam, gases and in particular electricity.
In most cases, the costs of local taxation incurred by operators in placing the above-mentioned transmission and distribution infrastructure are calculated in the final price of the goods or services.
This amendment is intended to exclude the increase in tariffs or charges for services provided by companies in connection with the transfer to them by the owners of the real estate on which such infrastructure is planted, the increased tax costs charged to those owners.
The amendment of the Act is to apply from 1 January 2019
Author:
Marcin Kołkowicz
Tax adviser, tax consultant At Russell Bedford Poland Sp. z o.o., a graduate of the Administration, Management and Marketing of the Catholic University of Lublin named after John Paul II. The subject of tax law deals with from 2012. He gained experience in Lublin and in Warsaw tax advisory offices. Author and co-author of many tax publications, in particular for the legal and tax portal TaxFin.pl. In his career, he dealt with both direct and indirect taxation issues, with particular emphasis on VAT.