Not so easy to tax everything together

When asked to comment on the verdict, Michał Nielepkowicz, tax adviser and partner at Thedy & Partners, emphatically stressed that the discussed NSA verdict is worth and should be appreciated for many reasons, mainly because the guidelines and the NSA’s standpoint formulated therein have a universal dimension. They do not apply only to this particular case, but in fact they may apply to the situation of every taxpayer. This is all the more so because the NSA raised a number of issues in the judgment concerning important practical matters.
Firstly, the NSA reminded what the role of an expert is – that he or she should comment only on technical issues (in fact, this is what special knowledge in the field of construction should concern) and in no case is an expert appointed to formulate an assessment regarding the qualification of objects both on the grounds of the construction law and, in particular, the tax act. The NSA reminded the WSA and the tax authorities that the tax authority has exclusive competence in this respect.
Secondly, the NSA questioned the position of the WSA with regard to the possibility of taxing so-called structures in buildings, clearly indicating that there is no sufficient legal basis in this respect. The NSA also explicitly stated that machinery in a production building – which in fact may be extended to any equipment, installations or other facilities in buildings – is not subject to real estate tax. This statement is very important because in recent years, tax authorities have made various attempts to tax equipment or installations located in buildings.
The NSA also reminded that technical equipment with foundations may be subject to taxation only to the extent of those foundations. Therefore, there are unlawful attempts to tax technical equipment in its entirety as: (1) so-called construction equipment (the NSA reminded here that the concept of construction equipment cannot be interpreted broadly and technical equipment can be taxed on the basis of it), (2) so-called free-standing equipment (installations) – all the more so if they are connected to building installations, or (3) based on the criterion of the technical-utility as a whole.
Additionally, the NSA very rightly pointed out that a potential attempt to tax transformer equipment as elements of the power network should first resolve the issue of determining the taxpayer under this title.
The effort made by the NSA judges in formulating such an extensive justification of the judgment is really worth appreciating. The more so as the NSA corrected the position of the WSA in many places, also formulating general guidelines which are of universal nature in property tax settlements.
Taxpayers may therefore hope that in the event of further disputes with tax authorities in the area of real estate tax, it will not be necessary to seek justice only at the NSA stage, but the tax authorities will already take into account these NSA guidelines when issuing tax decisions.
The entire article can be read in Rzeczpospolita dated 1 June 2022, page H7