Gloss on the judgment of the Supreme Administrative Court in Warsaw of 22 August 2023, III FSK 354/23

Abstract

Nature of the gloss: partially approving.
The gloss relates to a judgment of the Supreme Administrative Court covering the issue of the intertemporal provisions of the GAAR clause. According to the court, the provisions apply to tax benefits obtained after July 15, 2016, regardless of the date of the action. The court took the position that the provision of Article 7 of the Law Introducing Section IIIa of the Tax Ordinance Act is clear and it is not advisable to deviate from its literal interpretation. With the judgment, the Supreme Administrative Court ended the dispute as to the interpretation of the introductory provisions and the application of the general anti-tax-avoidance clause. Despite its unquestionable merit, the verdict does not address the issue of introducing changes to the tax law in the middle of the fiscal year, considered inconsistent with case law practice and the recommendations of the Constitutional Court. The ruling also provides a starting point for an analysis on the scattered control of constitutionality by the courts, which has been disputed in doctrine and jurisprudence for years.
Keywords: GAAR clause, diffuse control of constitutionality, vacatio legis, preliminary question.