The anti-crisis shield regulations did not suspend the running of the statute of limitations
The anti-crisis shield regulations did not stop the running of the statute of limitations in taxes, according to the oral justification of the resolution of seven judges of the Supreme Administrative Court (ref. I FPS 2/22). Taxpayers who paid tax as a result of the tax office's erroneous approach now have a chance to recover it and with interest, says Piotr Kalemba, tax adviser, senior manager at Thedy & Partners, in an interview with fpg24.pl.
– The Supreme Administrative Court ruled in a resolution adopted at the end of March that the COVID Act did not suspend the limitation period for tax liabilities. What exactly does this mean?
– The NSA, in the context of this particular case, advocated the position that tax law is a branch of law separate from administrative law. This issue has long been disputed in the doctrine. However, until now, in principle, these disputes have been purely academic – the resolution of this issue has remained without any impact on the situation of, for example, taxpayers.
Has this changed now?
– This changed dramatically during the fight against the COVID-19 pandemic. In this respect, it was provided under one of the provisions of the so-called crisis shield that, during the period in which an epidemic emergency or a state of epidemics declared on account of COVID-19 was in force, the running of the limitation periods provided for by administrative law did not commence and that those which had commenced were suspended for that period. This provision was in force for a few dozen days, but it raised huge doubts.
For from that moment – the moment the aforementioned provision was introduced – the decision as to whether or not tax law was part of administrative law determined the question of suspension of the running of the limitation period for tax liabilities, which was of considerable importance for taxpayers.
Why is this so important?
It must be remembered that, as a rule, tax authorities have five years to issue and serve on a taxpayer a decision concerning his tax liability. Within this period, both a decision of the first instance authority and a decision of the second instance authority should be issued and delivered (provided, of course, that the taxpayer has appealed against the decision of the first instance authority). Recognising that tax law is an element of administrative law would therefore give tax authorities an additional few dozen days to conduct proceedings and issue a tax decision and possible enforcement.
We are still waiting for the publication of the written justification of the resolution, but in the oral recitals of the resolution the NSA stated that the above approach is unacceptable. Indeed, the ambiguous regulation of the anti-crisis shield should not be applied to the disadvantage of taxpayers. Hence, due to the pandemic, tax authorities did not gain additional time to conduct tax proceedings or enforcement.
If, therefore, after the expiry of the statute of limitations, the tax authorities nevertheless pursued tax proceedings or enforcement, because they considered that the statute of limitations had been extended due to COVID-19, they acted unlawfully.
The entire interview can be read at this link: Przepisy tarczy antykryzysowej nie wstrzymały biegu przedawnienia [WYWIAD Z PIOTREM KALEMBĄ] – Forum Polskiej Gospodarki (fpg24.pl)