RSM Poland


Landmark judgement of the Constitutional Tribunal on taxation of buildings


On 13 December 2017, the Constitutional Tribunal (hereinafter: the CT) – reaching for the in dubio pro-tributario principle – resolved doubts regarding the property tax in favor of the taxpayer via a verdict (file No. 48/15). The problem with which the Tribunal was addressed concerned doubts regarding the recognition of a structure as a construction work that meets the definition criteria of a building. The resolution of the case is of great importance to entrepreneurs – mainly those who have devices in buildings.


On According to the legal definition contained in Article 1a paragraph 1 point 1 of the Act on Local Taxes and Fees (hereinafter ALTF), a construction work is considered to be a building within the meaning of the construction law, when it is is permanently connected with land, separated from space by means of building partitions and has foundations and a roof. However, pursuant to Article 1a paragraph 1 point 2 of the ALTF, a construction work is considered a structure as defined in construction law, when it is not a building or a small architecture object, as well as a construction device within the meaning of the construction law connected with a construction word, which provides the possibility of its use in accordance with its designation.

As the tax base of buildings and structures is different, the incorrect determination of what structure we are dealing with may have unpleasant consequences for the taxpayer. According to Article 5 of the ALTF, tax on the building is calculated from its floor area, while in the case of structures – from its value. Unfortunately, courts and tax authorities have often made too broad an interpretation of the statutory definitions of buildings and structures. As a result, the tax base was set to the detriment of taxpayers.

Against the background of such disputes, a constitutional complaint was issued to the Constitutional Tribunal. The complaint alleged violation of the Constitution of the Republic of Poland in the form of a uniform interpretation line of tax authorities and administrative courts. According to it, the construction works that meet the criteria for being classified as buildings within the meaning of the definition in Article 1a paragraph 1 point 1 of the ALTF were reclassified for buildings as defined in Article 1a paragraph 1 point 2 of this Act.

The courts and authorities referred to the linguistic and teleological interpretation of the definitions indicated. According to linguistic argumentation, it was assumed that if the legislator in the definition of the structure concept did not reserve that it cannot be considered a building, then it is not excluded that certain buildings would be considered as structures. In turn, the teleological argument was based on the assertion that in a situation when certain buildings can be considered as structures, requalification should be made by referring to the function of a given facility, taking into account its designation, equipment or the ways in which the object can be used.

The Constitutional Tribunal considered these argumentations unsubstantiated. In connection with the accepted language interpretation, it pointed to the lack of logic of such assumptions. On the other hand, taking into account the premises of teleological argumentation would result in a broadening interpretation of the structure definition and, consequently, a narrow interpretation of the definition of a building. The Tribunal found that acceptance of the above would lead to interference in the content of the legal definition and reinterpretation of tax provisions to the detriment of the taxpayer. Such action does not guarantee the legal security of taxpayers expressed in Article 84 in connection with Article 217 of the Constitution of the Republic of Poland. The Tribunal also recalled the in dubio pro tributario principle in the judgment – fundamental to the interpretation of tax law. It assumes that if an unambiguous interpretation of the provisions is given, the interpreter should not modify it with functional (including teleological) arguments, if it would adversely affect the taxpayer's legal situation. If the result obtained does not give an unambiguous interpretation, a selection should be made by indicating the result which will be the most advantageous for the addressee of the legal provision. The Tribunal decided that under no circumstances should functional arguments, including teleological arguments, result in increased tax burdens.

For taxpayers, this means one thing – the end of disputes over the recognition of buildings as structures. The cases in which the fight against the tax authorities and courts took place mainly concerned the buildings in which technical devices were located. The well-established interpretation line reached for arguments going beyond what was stated in the Act – the building is only a housing for the device inside, and therefore it should be considered as a structure. This interpretation of the bodies and courts was broadening, because it went beyond what was stated in the Act. If, therefore, a construction work meets the statutory definition of Article 1a paragraph 1 point 1 of the ALTF, i.e. it is separated from space by means of building partitions and has foundations and a roof, it is considered a building, not a structure.

It is worth analyzing your own case based on the judgment of the Constitutional Tribunal. If the rule on which the previous decision was based is not in conformity with the Constitution, then, in accordance with Article 145a §1 of the Code of Administrative Procedure, one can request reconsideration of the case, even if it ended with a legally valid ruling.


If you have any questions or need to discuss the topic, you are strongly encouraged to contact our expert, Piotr LISS:


tel. +48 61 8515 766

fax +48 61 8515 786