BI: A revolution in the taxation of structures. Will there be chaos?
The Constitutional Court's ruling on 4 July this year was like an earthquake. Now we have a continuation. For the Court has ruled that the definition of a structure in property tax is unconstitutional, but has postponed the loss of its constitutionality for a year and a half. Will the courts wait a year and a half to rule on the taxation of structures in accordance with the CT ruling? We have the answer," writes Business Insider.
Paweł Wyporski, senior consultant at Thedy & Partners, in a commentary for BI reminded that in a judgement of 4 July 2023 in the case ref. no.: SK 14/21, the Constitutional Tribunal stated that Article 1a(1)(2) of the Local Taxes and Fees Act, which defines a building, is unconstitutional and will cease to be in force in 18 months.
Although the expiry of the challenged provision has been postponed, administrative courts should take into account the position of the Constitutional Tribunal in their rulings and rule in doubtful cases in accordance with the principle in dubio pro tributario, i.e. resolve doubts in favour of the taxpayer.
The first ruling taking into account the landmark judgment of the Constitutional Tribunal appeared just one week after the announcement of the TK judgment. In the justification for the ruling of 12 July 2023, ref. no. I SA/Gl 375/23, the WSA in Gliwice drew attention to the most recent judgment of the Constitutional Tribunal in which the provision found in the case was found to be unconstitutional and pointed out that the tax authority that will reconsider the pending case should take into account the content of Article 2a of the Tax Ordinance in its ruling.
The WSA in Gliwice also recalled that the Tribunal had already twice raised constitutional doubts regarding the legal definition of a structure for the purposes of real estate tax and pointed to the need to amend it. The latest ruling of the Constitutional Tribunal finally confirms that the correct application of the definition of a structure (but also of a building) for the purposes of property tax raises numerous and fully justified doubts for taxpayers. These doubts relate to the issue of taxation of technical equipment (this issue was also dealt with in the commented judgment), but also a number of other types of facilities, such as tent halls, network facilities or container facilities.
It remains to be hoped that not only the administrative courts, but also the tax authorities will not wait passively for the amendment of the provisions contained in the Act on Local Taxes and Fees, noticing already now the defectiveness of the introduced definitions and resolving doubts concerning the content of the tax law provisions that cannot be removed in pending cases in favour of taxpayers, pursuant to Article 2a of the Tax Ordinance.
The entire article can be read at this link: Zapadły pierwsze wyroki po orzeczeniu TK w sprawie budowli. Będzie chaos? (businessinsider.com.pl)