Experts from the Tax Practice have successfully represented a client in a dispute over real estate tax exemption for a railway siding under the legislation in force in 2017–2021. The Supreme Administrative Court overturned the judgment of the voivodship administrative court and a preceding decision issued by the Local Government Appeals Board.

The case concerned the possibility of real estate tax exemption being applied to railway infrastructure used by the company in its core business and also made available to railway operators. The key issue was the interpretation of the concept of "making railway infrastructure available to operators".

The tax authorities and the first instance court had found that the absence of contracts with operators precluded exemption. The Supreme Administrative Court did not share this view. In its oral reasoning, it pointed out that ‘‘making available’’ also includes mere readiness to make the infrastructure available, it is enough that the operator is able to apply to the entity and gain access in accordance with the regulations.

This is the first judgment to explicitly confirm that readiness to make infrastructure available, rather than conclusion of a contract, meets the conditions for exemption from real estate tax (case nos. III FSK 1051/23 and III FSK 911/23).

Real estate tax is one of the most dynamically changing areas of tax law, as evidenced by recent amendments, the CJEU judgment in Case C-453/23 concerning State aid, and an application for a Supreme Administrative Court resolution in the context of the exemption of land under railway infrastructure (case no. III FSK 1020/23).

The case was handled by: Jan Czerwiński – Partner, Joanna Kociołek-Ziemba – Tax Manager and Artur Nowak – Partner.