Connecting in order to perform a given function does not determine the tax on a container
Social and office containers may constitute non-taxable objects, if they are not permanently connected to the ground and do not constitute buildings - results from the NSA verdict (sign III FSK 2124/21), described by Rzeczpospolita.
Michał Nielepkowicz, tax adviser, partner in Thedy & Partners, commenting on the issue in the newspaper, stressed that the discussed NSA ruling is very important and valuable both for tax authorities and taxpayers. First of all, because the guidelines formulated in it are universal and do not apply only to the so-called “concrete junction”, i.e. the disputed object considered by the NSA, but in fact are of universal nature and may apply to any case regarding real estate taxation.
Therefore, one really has to appreciate the work of the judges in preparing such a detailed justification. The said guidelines boil down to three points. First of all, the NSA, referring to the CT jurisprudence, unequivocally questioned the attempts to tax different facilities on the grounds that they were combined to perform a specific function. As the NSA pointed out, a single taxable object cannot be created from the sum of various objects on account of their common function. The NSA explicitly indicated that it is unacceptable.
Therefore, it should be assessed whether a given element (object), e.g. constituting the so-called concrete batching plant (but in fact it concerns all objects), constitutes a separate material object and, if so, whether it is a building object, and further – whether it constitutes a building or a structure or is not subject to taxation at all. Thus, the NSA explicitly indicated that, contrary to the attempts made – very often – by the tax authorities, not every object will be subject to taxation. This is a very important reservation.
Finally, it follows from the NSA’s judgment that social and office containers may constitute non-taxable objects if, as is very often the case in practice, they are not permanently connected to the ground and thus do not constitute buildings. If containers can therefore be moved to another location without hindrance, which is commonly the case for container facilities, they are not buildings and consequently should not be taxed. This approach has also been recently confirmed by the Ministry of Finance.
The entire article was published in Rzeczpospolita of 9 March 2022, p. F1