tax advisor, Tax Partner at RSM Poland
Head of German Desk
When at the beginning of 2003 first provisions concerning the interpretation of tax law were included in the Tax Ordinance Act, the Polish Ministry of Finance proudly announced its great success. Taxpayers were informed that, from this day on, legal certainty shall increase significantly, resulting from the fact that the interpretation and application of legal provisions will be, technically speaking, known in advance. In practice, as it usually happens, it turned out that the greatest problem is to ensure the uniformity of issued interpretations (initially such interpretations were to be obtained from the head of each tax office, at present they are issued only by a few entitled directors of tax chambers) and to determine the scope of protection guaranteed to taxpayers applying for an interpretation. Subsequently, on the initiative of the Supreme Administrative Court a "phantom-interpretation" appeared - as if issued, yet still undelivered. In addition, there is now a further difficulty - if a taxpayer obtains an interpretation which, in his or her opinion, fails to correspond to the law, he or she is forced to wait for the final decision even as long as... 5 years. The real problem is that by the time the rules will probably have changed up to 7 times, and the taxpayer may already pass away. Not everyone can afford (both mentally and financially) to take the risk of swimming against the current ...
Recently we have successfully completed a series of unfortunate events under a common title "how to obtain an individual interpretation of tax law provisions". In January 2011 we submitted an ORD-IN application, in April 2011 we obtained an interpretation from the Minister of Finance. The problem is that, in our opinion, it failed to comply with applicable provisions. After an appeal had been lodged to the Court of First Instance (issuing a request to the Minister of Finance to remedy the infringements, as in general, turned out unfruitful), we obtained a favorable verdict, yet the instruction for the Minister was so imprecise that it was necessary to appeal the amended interpretation as well. The final judgment before the Voivodship Administrative Court was obtained in October 2012. In December, however, the Minister of Finance decided to lodge a cassation appeal to the Supreme Administrative Court. Favorable judgment was entered... in April 2015 and the interpretation was amended in accordance with the guidelines given by the judges in September the same year.
Do the wheels of justice grind slowly? No such thing. This is rather a matter of sick system. The Minister issues an interpretation according to a ready-made pattern, usually forcing the pro-fiscal interpretation. If a taxpayer contests such approach, the case goes to the Voivodship Administrative Court. And yet, professionals are scarce there. The case is pushed further to the Supreme Administrative Court and, finally, there is no choice. Somebody has to take it on board and analyze it. In most cases it is done by the judicial assistant, as the judge has just enough time to cast a fleeting glance at his or her own judgment. Therefore, is there at any stage a single person having taxpayers’ interests at heart? Unfortunately, the answer can only be one: the system of interpretation is neither reliable nor swift. Then why is it there anyway?