BI: Resorts will pay less tax. Will skiing get cheaper?

Michal Nielepkowicz, tax advisor and partner at Thedy & Partners was asked by the Portal to comment. He stressed that in its judgments, the NSA very rightly emphasised that currently, when determining the scope of taxation of structures in real estate tax, it is unjustified to reach for the so-called technical and utilitarian entirety and, on this basis, to seek taxation of various types of technical equipment in addition to their foundations or building parts.
In this respect, the NSA cited, inter alia, the amendment to the definition of a building object in June 2015 and pointed out explicitly that, under the amended legal state, there are no grounds for taxing technical devices as structures under property tax. Only the construction parts of technical facilities or their foundations are subject to such taxation.
Personally, I believe that technical devices with structural parts should not be taxed also in the legal state before the aforementioned amendment, but it is definitely gratifying that the NSA has unequivocally resolved this issue in the legal state at least since the 2015 amendment.
Therefore, the judgments of the NSA issued on Monday are very valuable and are part of an emerging line of jurisprudence favourable to taxpayers, which has not been at all obvious over the last eight years, since the aforementioned amendment.
The judgments of the NSA have a universal character by the theses formulated in them. Specifically, however, for owners of ski resorts, i.e. the infrastructure on the grounds of which they were made, they mean a direct confirmation of the hitherto approach that only construction parts and foundations (supports) of the entire ski infrastructure, including ski lifts, are subject to taxation. At the same time, such ski infrastructure is no longer taxable in its entirety, which was repeatedly demanded by the tax authorities, also after the 2015 amendment.
If the owners of ski resorts have taxed their infrastructure in its entirety with property tax, they are as much as possible entitled to correct their declarations for all open years not covered by the statute of limitations and to claim an overpayment. This is because it follows from the judgments of the Supreme Administrative Court – once again – that not all ski infrastructure is subject to taxation, but it should be determined what, from the perspective of the Construction Law, the individual elements of this infrastructure are and: (1) the identified objects having the features of buildings – tax them as buildings and (2) review the remaining infrastructure from the point of view of excluding from taxation all technical equipment (in particular, drive wheels together with load-propelling ropes, drive systems, steering and safety systems, engines) leaving only the taxable supports and foundations.
In summary, the judgments of the NSA mean that the infrastructure in the form of ski lifts and cableways, which has been taxed in its entirety to date, will be taxed only to the extent of the supports and foundations of technical equipment and station buildings.
Consequently, the judgments of the Supreme Administrative Court will definitely contribute to a reduction in the taxation of ski resort properties. However, the heads of communes where such infrastructure is located should not worry in the long term, because the “lower”, and in fact realised, real estate tax, according to the judgments of the NSA, should contribute to definitely higher investments in ski infrastructure, where so far the high tax on the whole ski infrastructure has been a blocker of such investments. In the long term, municipal authorities should therefore gain more revenue from more investment in ski infrastructure in their area.