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Pre-assembled without tribute

A refuelling station, which was not erected from construction products, but was built outside of a steel construction area, cannot be a separate structure. It is a technical device which cannot be part of a building structure, according to the ruling of the WSA in Gdańsk, as described by Rzeczpospolita.

Michal Nielepkowicz, tax adviser and partner at Thedy & Partners, was asked by the editors to comment on this ruling. He stressed that the ruling in question is very important for several reasons. Firstly, it is part of a hopefully emerging line of case law of the administrative courts. Secondly, it deals with an important issue that has not been the subject of such a detailed analysis so far. It concerns the condition of erecting a structure with the use of construction products as an element that determines the existence of a construction object according to its definition, which under the current regulations makes it possible to recognise that we are dealing with either a building or a structure and thus determines their manner of being subject to property tax.

The issue is important insofar as in practice we can see attempts to tax various types of equipment or installations, as well as tanks, as structures with property tax. An example of such an object is the storage tank under consideration by the court in Gdańsk, which is an element of an LNG refuelling station.

In this respect, the court very rightly and somewhat courageously noted that in order to speak at all about the taxation of such objects with real estate tax, the very condition included in the definition of a construction object is fundamental. In the judgment, the court rightly noted that since the disputed refuelling station was not erected as part of the construction process with construction products, as it was manufactured outside the area of development and only transported to its destination, in order to be placed on a hardened surface, it is a technical device and not a construction object, and consequently potentially a construction. The objects (equipment) indicated are also not part of the construction work, nor do they constitute construction equipment related to the construction work. This in turn means that they remain outside the scope of real estate taxation. The judgment in question may serve as an important argument in defence of the non-taxation of various types of industrial, technological equipment or installations, or tanks consisting of ready-made objects, which are imported from production plants and only installed at their destination. After all, such facilities were not supposed to be subject to property tax and taxpayers did not take into account that they would have to pay tax on their value.

If it were to be otherwise, many investments would prove unprofitable. This economic aspect of property tax must not be forgotten and it is a very good thing that the amendment to the construction law in 2015, as well as the currently developing tax case law, are in line with this.

Entire article in Rzeczpospolita of 8 January 2024, p. D7

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