What's new at DZP?
Current projects.
Experts from DZP Tax Practice successfully represented Messer Polska Sp. z o.o. (a leading manufacturer and distributor of technical, medical, specialty and food gases) before the Supreme Administrative Court (“SAC”) in a case over excise duty charged on acetylene. These final instance appeal proceedings were of a precedential nature due to both the legal issues involved and the potential financial consequences.
Our experts won the case for the client. The SAC overturned the judgement of the Voivodship Administrative Court in Gliwice, which was disadvantageous to the company, in its judgement of 7 March 2013. The case was crucial for our client’s further existence. If the company had lost the case before the SAC, it could have been required to pay excise duty of several billion zloty due for almost five years.
The dispute boiled down to whether excise duty applied to a gas, i.e. acetylene, under regulations on excise duty which were in force between May 2004 and February 2009. They provided that the tax base for inter alia acyclic hydrocarbons (which include acetylene) should be set as the product quantity expressed in litres, while the quantity of acetylene is specified in commercial transactions in kilograms. However, generally applicable laws did not include any standards for conversion of kilograms into litres. Accordingly, the company believed that it was impossible to establish the excise duty base for acetylene and thus to establish the amount of the duty. Consequently, acetylene was not subject to excise duty at all under the then applicable law. However, tax authorities as well as the Voivodship Administrative Court in Gliwice were of a different opinion. They held that the excise duty base for acetylene could be established by converting the quantity of the product from kilograms into litres based on data on the average density of acetylene under “normal” conditions, included in an opinion issued by an external research centre.
The SAC fully accepted the argumentation of the company’s attorneys to the effect that the method adopted by tax authorities (and accepted by the first instance court) for calculation of the excise duty base for acetylene was unacceptable.
The SAC held in the verbal reasons for the judgment that if a statutory act and secondary legislation did not specify the methods and rates to be used in converting a quantity of the product in gas form into volume units, tax authorities could not use for such purposes data taken from an expert opinion and concerning average gas density under conditions described as “normal” because constitutive elements of duty cannot derive from extra-normative sources. The court observed that if “external” data had been used for such purposes, this would have lead to the situation where the duty base and, consequently, the amount of the duty on the same quantity of the same product could have been different (depending on conversion rates used), which is inadmissible under the Constitution. The SAC also emphasized that it would have been absurd to apply the duty if the method proposed by the tax authorities had been used. The excise duty rate would have been more than one hundred times higher than the value of the product.
Messer Polska Sp. z o.o. was represented before the SAC by experts from our Tax Practice: Artur Nowak and Katarzyna Maćkowska. Magdalena Dobrowiecka was also involved in the case.
Messer Polska Sp. z o.o., a member company of the global group Messer Group GmbH, has been operating in Poland since 1992. It manufactures and distributes technical, specialty, food and medical gases and provides comprehensive support related to gas storage and distribution systems.
From 25 May 2018 the General Data Protection Regulation (GDPR) applies in Poland and other European Union countries. We would therefore like to give you several details on the subject of how DZP processes personal data.
The administrator of the personal data is Domański Zakrzewski Palinka Sp.k. (“DZP”; address: Rondo ONZ 1, 00-124 Warszawa). Data are processed for contact purposes and to impart information on changes to provisions and authority practices and on other issues, including events concerning day-to-day legal, economic and cultural issues, inter alia, by sending DZP newsletters. The above is carried out on the basis of legitimate interests, i.e. in accordance with art. 6(1)(f) of the GDPR. Data can also be processed where necessary for the conclusion or performance of a contract and for compliance with a legal obligation to which DZP is subject, i.e. pursuant to art. 6(1)(b) and (c) of the GDPR. Data can be transferred to entities with whose help DZP achieves the indicated aims, including entities maintaining IT infrastructure. Giving data is voluntary and in contractual relations is a requirement for concluding and performing a contract. It is possible to object to data processing, request access to, rectification and erasure of personal data or restriction of processing and data portability. Data are kept until an objection is made, and in contractual relations – throughout the term of the contract and thereafter for a period specified in provisions on archiving and limitations period for claims. Anyone has the right to file a complaint with the President of the Personal Data Protection Office. Questions concerning privacy at DZP can be sent to DZP’s Data Protection Inspector, Macieja Maciejewskiego, at: iod@dzp.pl.
New rules on cookies: Domański Zakrzewski Palinka sp.k., as the service provider of the www.dzp.pl website, stores and accesses cookies, i.e. small text information fles sent by a web server and stored on your hard drive, or other data storage medium of a user, for the purposes of: proper functioning of the www.dzp.pl website, confguring the www.dzp.pl website, security and reliability of the www.dzp.pl website, session monitoring, providing advertisements, personalization of the displayed information to the user, or analysis, statistics, research and website trafc auditing.
You can specify the conditions for storage of or access to cookies via your browser settings. Consent to the storage of or access to cookies by Domański Zakrzewski Palinka sp.k. on your device, is acknowledged by the settings of the browser installed on your device. For more information, see our cookie policy.