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A building structure satisfying the criteria of a building cannot be treated as a construction structure – ruling of the Constitutional Tribunal of 13 December 2017, ref. no. SK 48/15

2018-01-18

On 13 December 2017, the Constitutional Tribunal gave a ruling in case ref. no. SK 48/15, according to which Article 1a paragraph 1 item 2 of the Act on Taxes and Local Charges of 12 January 1991 (where a legal definition of a construction structure is included), to the extent where it makes possible to find that a building structure satisfying the criteria for a building, as envisaged in Article 1a paragraph 1 item 1 of the above law, is a construction structure, is contradictory with the principle of special specification of regulations on public levies, derived from Article 84 in conjunction with Article 217, in conjunction with Article 64 paragraph 3 of the Constitution of the Republic of Poland.

Therefore, in the opinion of the Constitutional Tribunal, in a situation where a building structure satisfies the conditions for treating it as a building, it is not admissible to qualify it as a construction structure within the meaning of the above-referenced provisions.

It is worth noting that a ruling of the Constitutional Tribunal has resulted from a constitutional complaint lodged by a company from the telecom sector in 2015. The point of dispute was an issue of proper taxation of telecom containers making part of transmission stations. The company argued that inside containers there is complicated and valuable transmission equipment, and therefore containers should be classified as buildings for the purpose of real estate tax. But tax authorities qualified those structures as construction structures.  

Thus, the amount of tax levied on the company was many times higher than the amount that would have been calculated if the structures had been treated as buildings. The company fought with the authorities without success before courts of many instances, it also lost the case before the Supreme Administrative Court, which noted that the qualification of containers as construction structures is supported by their intended purpose and by putting exactly the said equipment inside the structures, as a result of which they lose the features of a building and tax should be charged thereon in accordance with the principles appropriate for construction structures.

The above ruling of the Constitutional Tribunal has significance for those entrepreneurs who in the past declared higher real estate tax on construction structures satisfying the criteria of buildings.

The ruling of the Constitutional Tribunal gives a possibility to taxpayers to request that the proceedings ended with final resolutions of tax authorities and administrative courts be resumed (a deadline for filing a request to resume the proceedings is 30 days of the date on which the ruling of the Constitutional Tribunal is published in the Journal of Laws, or 3 months of that date in the case of proceedings before administrative courts).

The ruling of the Constitutional Tribunal was published in the Journal of Laws on 27 December 2017.

 

Rafał Mielko, Tax Consultant, ATA Tax Sp. z o.o.