Rz: Losses from lockdowns must be taken into account

Michał Nielepkowicz in an interview with Rzeczpospolita:
Do companies that were forced to close down during the pandemic have grounds to claim a reduction in property tax rates? Can they claim overpayments or write-offs?
The answer to this question should be very simple: yes. For the pandemic period, as much as possible, companies should apply lower property tax rates. This is justified both in terms of substantive law and is justified by considerations of equity, social reasons. As far as the substantive law is concerned, this justification stems directly from the definition of real estate tax subjects related to the conduct of business activity, which, admittedly, according to the statutory definition, means objects in the possession of an entrepreneur, but the Constitutional Tribunal has already decided in several judgments unequivocally and definitively that the highest rates of real estate tax are applicable only to tax subjects, e.g. buildings, only if they can be used in the conducted business activity and – which is important – are actually used in this way. And let us remember that during the entire pandemic period, we had to deal with a number of bans on business activities in various industries and on the basis of generally applicable legislation. This means that the entrepreneur in question could not run a business, which in turn should lead to the obvious conclusion that, in that case, he or she cannot pay property tax at the highest rate either.
Are the courts narrowing the rules?
In this respect, the position of the administrative courts, including the Supreme Administrative Court – with which we have been dealing recently – is not only restrictive and limiting of the position expressed in the CT judgment, but even contradictory to it. It is also difficult to reconcile with the human sense of justice and fairness. If the Court has determined that regulations should be interpreted in a certain way, administrative courts, including the Supreme Administrative Court, may not then narrow the scope of application of these regulations, particularly in the case of entrepreneurs who are legal entities, to situations that do not occur in practice. And this is the situation we have been dealing with recently. Therefore, once again, such action by the administrative courts must be assessed very critically.
What could be the reason for such an approach?
The case law shows that administrative courts in Poland do not take into account the realities of doing business and do not understand the situation of taxpayers, and their position sometimes amounts to theorising completely detached from these realities. What is worse, contrary to the position of the Constitutional Tribunal. In this aspect, the value of judgments issued by administrative courts for taxpayers and tax authorities is practically nonexistent. If, in a situation of extremely flawed tax regulations, especially those concerning real estate tax, the Constitutional Tribunal decides that if a given property cannot be used in the course of business, then tax at the highest rate is not due, then how can a judgment completely contradict this and deny an entrepreneur the application of a lower rate. It is a misunderstanding – to put it mildly – to consider that an entrepreneur is only entitled to a lower rate if he also carries out some non-economic activity, even if he does not use some property and cannot use it in his business. And this is what the NSA’s position, repeated like a mantra by successive WSA formations, boils down to.
The entire interview can be read in Rzeczpospolita of 17 January 2023, page F2