3 août 2023 Michal Nocon  -  Janusz Dzianachowski Tax

Definition of “structure” provided in real estate tax provisions held unconstitutional

Background

In its ruling dated 4 July 2023 (case file SK 14/21), the Polish Constitutional Court (“Court”) held that the definition of “structure” in Polish real estate tax was imprecise and thus unconstitutional.

As a result, the statutory definition of “structure” will lose its legal effect 18 months after the ruling is published in the Polish Journal of Laws. It is expected that new regulations will be enacted during this period and come into force in 2025.

The ruling marks one of the biggest changes in Polish real estate tax in recent years and has important implications for Polish taxpayers.

Key takeaways

The Court has indicated that all decisions issued on the basis of this unconstitutional provision remain in force.

However, it may be worthwhile for taxpayers to take action with respect to both pending and closed real estate tax proceedings as unconstitutionality is a ground for reopening proceedings that were closed with a final decision.

  • Closed tax proceedings: Potentially – in line with one interpretation of law – taxpayers who have lost their disputes over taxation of structures can file applications for resumption of proceedings by 10 August 2023. Alternatively – in line with other interpretation – they should wait until the ruling comes into force (i.e. January 2025) to file their applications. However, it should be noted that the second option could prove disadvantageous if new regulations are enacted before the expiration date, since there could no longer be grounds for filing renewal applications.
  • Pending tax proceedings: For pending proceedings, taxpayers could invoke the published ruling, since when a legal provision is declared unconstitutional this must be taken into account during any pending proceedings.
  • No tax proceedings: Those taxpayers for whom such tax proceedings have not been initiated are advised to examine their real estate tax reconciliations in order to determine if they are eligible for a potential overpayment.

Please do not hesitate to contact us if you are interested in further information on this subject.