Construction ambiguities in favour of the taxpayer
Tuesday's verdict by the Constitutional Tribunal will not, for the time being, enable the return of the construction tax, but it will improve the situation of entrepreneurs in disputes with municipalities, writes Rzeczpospolita.
Michał Nielepkowicz, tax advisor and partner at Thedy & Partners, was asked by the editorial team to comment. He stressed that the ECJ’s verdict repealing the provision defining constructions will be of great significance for taxpayers, although its effects will not immediately become apparent. Besides, even in the verbal justification of the judgment, it was noted that the rulings issued on the basis of this provision remain in force. We will probably only find out what the new definition of a structure will be – let us hope it will be more precise than it is today – in many months’ time, given the one-and-a-half-year deadline for the enactment of new legislation. Nonetheless, the argument of a challenge to this definition by the Constitutional Tribunal can be raised in the ongoing proceedings concerning the tax on structures. Administrative courts in such a situation should resolve interpretation doubts in favour of the taxpayer.
– In the case of proceedings that have already been concluded, it will be possible to resume proceedings in respect of decisions relating to years falling within the statute of limitations for tax liabilities. Assuming that resumption will be possible only after the provision challenged by the Constitutional Tribunal ceases to be binding, i.e. that the judgement will enter into force in January 2025, then motions for resumption of proceedings may concern tax assessments for 2020 and subsequent years,” points out Michał Nielepkowicz.
The entire article can be read in Rzeczpospolita of 6 July 2023, page A10