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Rz: More for a flat with a sea view

If a flat is leased through a professional company, tax is paid at the highest rate - results from the MP's interpellation described by Rzeczpospolita.

Michał Nielepkowicz, tax adviser, partner in Thedy & Partners, commenting on the matter in the newspaper, pointed out that the questioned interpellation concerned real estate taxation of residential premises leased as facilities and places of short-term accommodation in tourist regions, but the answer formulated goes further – and also covers the very common letting of residential premises, including so-called apartment buildings, by entities managing these premises on the basis of agreements concluded with the owners of these premises. And for many reasons this is a controversial answer.
In both cases, the provisions regulating property tax are the same and in both cases they raise doubts. Residential buildings or premises are in fact subject to the lowest rate of real estate tax unless they are occupied for business activity. This brings us to the root of the problem – tax regulations do not in any way regulate what “occupation” of premises for business purposes means. It seems that only occupation of the premises for business activity, i.e. actual commencement and conduct of this activity in the premises, entitles the tax authorities to demand in such a situation the highest tax rate – connected with conduct of business activity. By the same token, the mere designation of the premises for such activity is not sufficient, or – as is often the case in practice – the use of the services of an intermediary who, even if only as part of his business activity, will seek tenants. Unless such an intermediary starts to use the premises for his business activity, e.g. by organising his office there, it is impossible to speak of occupation of the premises for business activity. All the more so if the prospective lessee uses the premises to satisfy his own residential needs. Hence, the position adopted in response to the question goes too far – indicating that using the services of an intermediary to rent out the premises to the target tenant will immediately mean that it will be subject to the highest rate of real estate tax. What is more, the NSA’s jurisprudence is not uniform in this respect and the courts also raise the issue of, for example, the necessity of first transferring the possession to the intermediary (i.e. de facto leasing the premises to the intermediary), who then gives it to the target lessee. This is not necessarily the case when using the services of an intermediary. Another thing is that the highest tax rate is not a foregone conclusion also in tourist regions – where doubts may be raised by the very fact of conducting economic activity at all: of the owner or the intermediary.
Therefore, there is only one conclusion to be drawn from the answer to the interpellation: this issue is yet another reason to unquestionably change the regulations on real estate taxation and thus – to avoid the aforementioned doubts in practice.

The entire article can be read in Rzeczpospolita of 30 July 2021, p. N3

 

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