The Ombudsman asked the National Notary Council to clarify the inclusion of a notarial charge in VAT.
According to RPO:
According to Article 5(1) Act dated 14 February 1991 - Notary law (Journal of Laws of 2020, item 1192), a notary for carrying out notarial activities shall be entitled to a remuneration determined on the basis of a contract with the parties to the activities, no higher than the maximum rate of notarial tax applicable to the activity. By contrast, Article 5(3) Notarial rights, Minister of Justice in the Regulation dated 28 June 2004 on maximum rates for notarial tax (Journal of Laws of 2020, item 1473, hereinafter ‘the Rate Regulation’), it laid down the maximum rates of remuneration for notaries.
The grammatical interpretation of the provisions on the remuneration of the notary speaks entirely unequivocally and in a way that does not raise the remuneration of the notary designated by the court for the tax on goods and services
The remuneration adjustment is therefore included in the various grades, i.e. the bill and regulation. However, it should be noted that neither the provisions of the Notarial Act nor the Rates Regulation provide that the remuneration of the notary shall be taken into account for the purpose of determining the remuneration of the notary, nor shall the remuneration to be determined be subject to an increase in that tax.
By contrast, Article 29a(6)(1) Act dated 11 March 2004 on tax on goods and services (Journal of Laws of 2021, item 685, hereinafter: ‘VAT Act’), the taxable amount includes taxes, duties, charges and other similar charges, except for the amount of the tax on goods and services.
Therefore, regardless of whether the notary's remuneration has been set at the maximum, it should already include an added tax on goods and services, since according to Article 3(2) Act dated 9 May 2014 information on prices of goods and services (Journal of Laws of 2019, item 178) the price shall include the duty on goods and services and the excise duty if, on the basis of separate provisions, the sale of goods (services) is subject to a duty on goods and services or excise duty.
The notary's remuneration may, however, be treated as a price for his actions because there is no normative basis for his recognition as a public debt. It cannot be regarded as such simply because it is charged for an official activity.
The criterion for the attribution of a certain benefit to the public revenue pool is determined by the law of its use and by the compulsory enforcement procedure (contribution notice 7 SN judges dated 23 September 2009 reference no. I KZFP 7/09).
Since the remuneration of the notary is the price for the service rendered, regardless of whether it is equal to the maximum tax rate, the tax on goods and services should be included.
It is difficult to accept the view that in the event of a salary lower than the maximum tax rate, the tax on goods and services (Błażej Materna, Institute of Tax Studies Modzelewski and Partners) is to be added to the remuneration so determined, https://ksiegowosc.infor.pl/podatki/vat/zakres-opodatkowania/3569703,Taksa-notarialna-a-VAT-podatekzawarty-w-wynagrodzeniu-notariusza.html
This understanding of the VAT rules confirms the view expressed in the judgment of the CJEU dated 7 November 2013, issued in joint cases C-249/12 and C-250/12 Corina-Hrisi Tulică v. Agenţia Naţională de Administrare Fiscală - Direcţia Generală de Soluţionare a Contestaţiilor and Călin Ion Plavoşin v.
Direcţia Generală a Finanţelor Publice Timiş - Serviciul Soluţionare Contestaţii, Activitatea de Inspectţie Fiscală - Serviciul de Inspectièrie Fiscală Timiş (thesis of the 43).
According to the directive, the provisions of the Directive are to be interpreted as meaning that where the price of the goods has been fixed by the parties without any reference to value added tax and the supplier of the goods is a taxable person, the price to be determined where the supplier cannot recover from the purchaser the value added tax requested by the tax authority should be regarded as a price covering that tax.
This view - according to the position of the SN expressed in the resolution dated 7 July 2016 reference no. III CZP 34/16 - reference should also be made to the benefits which the legislature has fixed unless the legislator has specified at the same time that the amount indicated is to be increased by a tax on goods and services.
However, according to the view expressed by the Supreme Court in its resolution, dated 26 June 2014, reference no.
III CZP 27/14, The grammatical interpretation of the provisions on the remuneration of the notary speaks clearly and in a way that does not raise the remuneration of the notary designated by the court for the tax on goods and services.
It should be assumed that the legislators' will was exhaustive establishing the criteria on which the remuneration of the notary is determined. If so, an unacceptable interpretation should be considered extending the provisions governing the remuneration of the notary.
And although this resolution concerns notaries who are acting on their own initiative (designated by the court), the view expressed by the SN is also valid for other notaries. Similar position was expressed by the Supreme Court in the explanatory memorandum of the resolution dated 25 January 2007, reference no.
III CZP 95/06 concerning the lawyer's salary. Highlighting detailed and exhaustive the nature of the remuneration regulation for activities carried out by representatives of professions such as lawyers, legal advisers, etc. exhaustive, also with regard to the taxation of lawyer services on goods and services.
As SN noted, this view is also supported by an external interpretation. Where the legislator wanted to allow the amount of tax on goods and services to be added to the amount of remuneration - he did so clearly as Under section 2 section 3 Regulations (repealed as from 1 January 2016).
Minister for Justice dated 28 September 2002 on the fees for legal aid and on the costs of legal aid granted by the State Treasury on its own initiative and on fees for legal aid and on the costs of legal aid by the State Treasury on its own initiative.
It is therefore justified to state that the principle adopted in Polish constitutional law requiring a statutory basis for the obligation to bear public burdens and benefits, combined with the rule derived from Article 29a(1) in conjunction with section 6 point 1 The VAT Act (tax is included in the duty on goods or services provided) makes it impossible to add tax to a notarial tax without express authorisation in the statutory rule.
From the information provided to the Ombudsman by the portal INFOR.PL, which asked the Ministry of Finance to take a position on the matter, it follows that the VAT treatment practice for a notarial tax is not permitted.
According to the Ministry of Finance: "The maximum rates of the notarial tax for notarial activities and the maximum amounts by which remuneration may be increased for notarial activities outside the notarial office are laid down in the Regulation of the Minister of Justice on maximum rates of the notarial tax.
The above Regulation does not indicate the possibility for notaries to increase the maximum rates of notarial tax on goods and services. In view of the above, the MF considers that the tax on goods and services should not be added to the remuneration established by the notary with the parties to the activity, but should be part of it.’
In view of the above, the general practice of adding VAT on notarial tax raises serious concerns for the Ombudsman. The current provisions on the remuneration of the notary, which are undoubtedly of a guarantee and protection nature, are against the admissibility of adding the rate of the tax on goods and services to the notary's remuneration.
Therefore, acting on the basis of Article 12(2) Act dated 15 July 1987 on the Ombudsman (Journal of Laws of 2020, item 627) I would like to ask the President kindly to inform whether the National Notary Council has reached its position on the problem.