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Landmark judgment in a case involving a refusal to issue an individual tax ruling

19.04.2018

Autorzy:
Artur Nowak
Tomasz Leszczewski

Landmark judgment in a case involving a refusal to issue a ruling due to suspected use of a tax avoidance clause

The Tax Practice has successfully advised in a case before the Voivodship Administrative Court (VAC) in Warsaw involving a refusal to issue an individual tax ruling due to the suspected use of a tax avoidance clause. The authority derived this suspicion from the fact that it was possible to apply a lower tax rate, without checking whether in the circumstances of the case the clause did not apply due to other circumstances. It also found that the opinion of the Minister of Development and Finance (opinions in this respect are currently issued by the Head of the National Revenue Administration), issued in a procedure where an application is made to the entitled authority for an opinion on the possibility of refusing to issue a tax ruling (art. 14b(5c) of the Tax Code) as regards elements of the facts or a future event regarding which there is a reasonable assumption that they could be the subject-matter of a decision issued with application of a tax avoidance clause, is binding, and there is no possibility of a decision in the case other than one compliant with this opinion.

This stance, prevailing in authority practice, was rejected by the VAC in Warsaw and in its judgment, it indicated that a refusal to issue a ruling must be determined by the existence of “reasonable assumption” of use of a tax avoidance clause. In the court’s view, “reasonable assumption” means one that is based on objective reasons supported by arguments, recitals or reasons resulting from the facts set out in the application. The VAC stressed that if the authority has insufficient data/information to check whether its assumption is reasonable, then it is obliged to call upon the party to supplement/give data enabling an assessment of the possibility of using a tax avoidance clause.

The VAC also stated that the above-said opinion of the Minister of Development and Finance (these opinions are currently issued by the Head of the National Revenue Administration) is not binding on the authority issuing the ruling or on the Court. This opinion does not therefore release the authority from making an independent assessment of whether there is reasonable assumption that a clause has been used and therefore refusing to issue a ruling.

The case was conducted by DZP lawyers Artur Nowak and Tomasz Leszczewski from our Tax Practice, specialising in, inter alia, tax, administrative court and tax crime proceedings.

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