Gloss on a judgment of the Supreme Administrative Court of 29 August 2023, III FSK 423/23

Abstract

Several problems have arisen in determining a content of Article 1a(1)(2) of the Law on Taxes and Local Fees as far as that law defines a scope of taxation of structures, after the Constitutional Tribunal has declared on 4 July 2023 unconstitutionality of these norms. A question on an application of the repealed provision during the withholding period is one of the most significant issues. This issue is dealt with in the judgment of the Supreme Administrative Court (SAC) in the case of III FSK 423/23. The decision made therein was based on the transitional norm providing for the validity of the unconstitutional provision. The SAC decision clarifies the aims of the Constitutional Court’s judgment (repealing the unconstitutional definition of a structure, and not limiting the scope of the subject matter of property tax). In addition, in the judgment under review, the Court draws attention to how the concept of a structure should be interpreted in the transitional state of the law, which is of considerable importance given that the Court did not provide any guidance on this issue in its judgment. The SAC pointed out that, on one hand, that due to the postponement of the effect of the Constitutional Court’s judgment, the repealed provision should be applied during the transitional period. However, on the other hand, one cannot pretend not to know about unconstitutionality of that norm. In this regard, the Court stated that the repealed provision should be co-applied with the findings of researchers and jurisprudence, as well as the Constitution of the Republic of Poland’s norms. Given the above, I consider that the judgment in question deserves to be the subject of an approving gloss, due to its precedent-setting nature and the direction in which the interpretation of tax law norms should take place in the current state of the law.