A building may be taxed as a building, but not always

Gazeta asked Michał Nielepkowicz, tax advisor and partner at Thedy & Partners, to comment on this ruling. In his comment, he stressed that everyone, i.e. both taxpayers and tax authorities hoped that the NSA resolution would dispel once and for all the doubts regarding the qualification of buildings for real estate tax purposes. Unfortunately, everyone was disappointed. To make matters worse, instead of cutting off these doubts, the NSA actually deepened them – stating that the decisive factor for the classification of a facility for real estate tax purposes would not only be the four features indicated in the definition of a building, but also an additional, fifth feature, namely, whether the characteristic feature of such a facility is also its usable area. We have thus gone back several years – where it was persistently held that such non-statutory premises as equipment or filling in of a building may change its tax classification, i.e. change it from a building into a structure. Importantly, these are both non-statutory and absolutely vague criteria. For what is both the taxpayer and the tax authority supposed to rely on when analysing the “equipment”, “function”, “purpose”, “filling” of a facility, and now – the usable floor area as the “characteristic feature” of a building? Does this mean that sufficiently high-storey logistics warehouses, which up to now no one would have thought of making a building out of, suddenly have to be taxed on their value? And where do we draw the line between taxing them as buildings and taxing them as structures? What about sports facilities / hotels / multi-storey garages? We hope that the Constitutional Tribunal will return to the statutory premises and will not search for extra-legal and at the same time vague criteria of qualifying buildings for property tax purposes.
The entire article can be read in Dziennik Gazeta Prawna of 30 September 2021, page B2