The Tax Law Quarterly is a scientific journal concerning national, international and European Union tax law. In the Tax Law Quarterly there are published mainly scientific articles regarding tax law and tax science. Besides, there are published reviews, reports on conferences and materials regarding tax law such as the Centre of Tax Documentation and Studies Reports about the state of polish tax law. Studies are prepared by famous and highly-regarded authors – both Polish and foreign – mainly from academic circles.
A commentary with approving and critical remarks on the judgment of the Voivodeship Administrative Court in Gliwice of 26 September 2024, case file I SA/Gl 649/24
The judgment of the Voivodeship Administrative Court in Gliwice of 26 September 2024 (case file I SA/Gl 649/24) concerns the refusal to issue an individual tax ruling due to the existence of a general interpretation of the Minister of Finance of 9 December 2021 (No. DCT2.8203.2.2021) regarding the concept of a homogeneous controlled transaction. The Court held that the general interpretation comprehensively clarifies the notion of homogeneity of controlled transactions and that, pursuant to Article 14b § 5a of the Tax Ordinance, this excludes the possibility of issuing a separate individual interpretation within the same scope. This commentary largely endorses the Court’s position, emphasising its consistency with the objective of ensuring the uniform interpretation of tax law and avoiding the duplication of general interpretations. It discusses the essence of homogeneous transactions within the meaning of Article 11k of the CIT Act and analyses the prerequisites for the application of Article 14b § 5a of the Tax Ordinance in light of administrative case law. The commentary identifies the criteria of homogeneity (including economic uniformity, comparability criteria, and transfer pricing verification methods) and examines practical interpretative issues – for example, the impact of differentiated characteristics of individual transactions (such as varying loan terms or the use of safe harbour simplifications) on the assessment of their homogeneity. At the same time, the author notes that the abstract nature of general interpretations may give rise to doubts as to their application to specific factual circumstances. The commentary concludes with an overall approving assessment of the judgment, while also highlighting the need for more detailed guidance from the authorities (for instance, through a more comprehensive general interpretation) in order to eliminate potential ambiguities for taxpayers and to ensure full legal protection.
controlled transaction of a homogeneous nature
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Legal substance versus economic substance in the taxation of corporate income – boundaries, differences and risks of abuse
This article addresses the relationship between legal substance and economic substance in the taxation of corporate income. The starting point is a definitional analysis of both concepts: while economic substance has been gaining increasing prominence in international and domestic tax discourse, legal substance – particularly in Poland – is still relatively rarely identified as a separate category of assessment, which may lead to an overlap between these concepts and potential interpretative challenges. The author examines the development of both categories in EU law (in particular, the Anti-Tax Avoidance Directive), in the work of the Organisation for Economic Co-operation and Development (notably the Base Erosion and Profit Shifting Project – BEPS), as well as their reception in national legislation, with special focus on the general anti-avoidance rule and specific anti-abuse rules (such as provisions introducing limitations on interest deductibility, the taxation of controlled foreign company income, and regulations on so-called exit taxation). The article also reviews the case law of the Court of Justice of the European Union, with the aim of illustrating practical examples of the application of legal and economic substance and highlighting possible tensions between them. In conclusion, the author proposes moving beyond the dichotomous distinction towards an additional “control” criterion – i.e. the assessment of who, in practice, exercises decision-making power over the use and development of resources. The control test may serve as a practical tool for both tax administrations and taxpayers, enabling them to distinguish genuine business structures from artificial arrangements that are merely formally endowed with assets or attributes of legal substance. Ultimately – in the author’s view – it is control that may determine the allocation of substance to a given legal entity and thereby define the permissible limits of tax planning.
The Right to a Fair Trial within the Meaning of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms – Selected Issues Key to Understanding the Convention Standard in the Field of Taxation
The purpose of this article is to reconstruct and systematise the normative content of the Convention standard concerning the right of access to a court (the right to a fair trial) and to identify the elements of that standard which are relevant in the field of taxation. This issue is of particular importance, as the Convention standard constitutes one of the key benchmarks for assessing national procedural frameworks in terms of their compliance with the requirements of effective judicial protection and procedural guarantees afforded to individuals.
right to a court (right to a fair trial)
Taxation of digital services – overview of unilateral measures
The primary aim of this article is to examine unilateral mechanisms for the taxation of digital services across various jurisdictions. The global reform of digital services taxation, based on the assumptions of Pillar I of the OECD/G20 BEPS 2.0 project, appears increasingly unlikely to materialise in its originally envisaged form. For many EU Member States, the solution proposed by the European Commission in the draft Directive on a Digital Services Tax (DST) has become an important reference point in the design of unilateral tax measures. In most cases, digital services taxes take the form of revenue-based levies imposed on specific categories of services supplied in the digital environment. Such taxes are inherently selective in nature, and their structure is primarily aimed at reallocating a portion of the value generated by the largest digital enterprises. The conclusions drawn from this comparative international analysis may contribute to shaping the Polish tax policy framework concerning the taxation of digital activities.
The Scope of Judicial Review of a Securing (Interim) Decision and the Right to an Effective Remedy
Pursuant to the resolution of the Supreme Administrative Court (NSA) of 24 October 2011 (file no. I FPS 1/11), and in accordance with established administrative and judicial practice, where an assessment decision is issued in the course of tax appeal proceedings concerning the securing of a tax liability under Article 33 §§ 1–4 of the Tax Ordinance Act, the appeal proceedings are discontinued pursuant to Article 233 § 1 point 3 of that Act. Such an approach constitutes a significant limitation of the taxpayer’s right to an effective remedy, including the right of access to a court. The author argues that, in light of the judgment of the Court of Justice of the European Union of 3 July 2025 in Case C-605/23, Ati-19 (ECLI:EU:C:2025:513), this limitation is incompatible with Article 47 of the Charter of Fundamental Rights of the European Union. The article further examines the procedural avenues available for aligning current domestic practice with the standard arising from that judgment.
Charter of Fundamental Rights of the European Union
Economic substance test in the case of conduit companies – the beneficial ownership clause and transaction recharacterisation
The article examines the economic substance test as applied to conduit companies, analysing the interaction between the beneficial ownership clause (beneficial owner) and transaction recharacterisation (non-recognition) in tax law. The authors review the evolution of the beneficial ownership concept in the context of the OECD Model Tax Convention Commentary, comparing it with the methodology used to assess economic substance under transfer pricing rules. Drawing on case law of the Court of Justice of the European Union (CJEU) as well as domestic and foreign courts, the article argues that the modern approach to assessing economic substance extends beyond formal legal ownership criteria and involves a more comprehensive evaluation of actual business activity. The paper also highlights the growing overlap between mechanisms typical of the WHT and TP regimes, which necessitates balancing the effectiveness of anti-avoidance measures with the protection of taxpayers’ rights. The central thesis is that while the economic substance test serves an anti-abuse function in both regimes, it differs in scope, purpose, and intensity of assessment: under the BO clause it has a binary (qualifying) character, whereas in transfer pricing it operates as a tool for calibrating the allocation of functions and income within multinational groups.
Commentary on the judgment of the Court of Justice of the European Union of September 10, 2024, in case C-465/20 P, European Commission v Ireland and Others
The commentary provides critical remarks on the judgment of the Court of Justice of the European Union of September 10th, 2024, in case C-465/20 P, European Commission v Ireland and Others, which concluded long-running proceedings on state aid granted to the Apple group by Ireland. The commented ruling occupies an important place in the Court’s jurisprudence not only from the perspective of its length (404 points) or the huge amount in dispute (more than 13 billion euros), but above all from its impact on the assessment of “normal” taxation under the applicable national law in the context of state aid. The ruling departs from the previous line of jurisprudence on the permissibility of applying standards external to a Member State’s legal system and may indicate a further widening of the front in the fight against aggressive tax planning.
Disposing of an establishment as a prerequisite for establishing a permanent establishment in the era of widespread remote working
The growing popularity of remote work, particularly in the form of the home office, has led to the questioning of the long-held assumption that the establishment of a permanent establishment in the country of employment requires the physical possession of premises (e.g. the employee’s house) by the employer. This has resulted in different interpretation of the need to have premises at one’s disposal by the Polish National Tax Information Office in its tax rulings and by the administrative courts in their case law. This divergence has been evident since 2015. However, analysing these rulings and case law leads to the conclusion that the necessity to have premises at one’s disposal as a prerequisite for the establishment of a PE is currently supported exclusively by the text of the Commentary on the OECD Model Convention. Conversely, a linguistic, systematic and functional interpretation of the very definition of a permanent establishment contained in Article 5(1) of the OECD Model Convention, disregarding the content of the Commentary, suggests that having premises at one’s disposal is no longer a premise limiting the establishment of a PE.
Critical commentary on the judgment of the Voivodeship Administrative Court in Wrocław of 25 June 2024 case no. I SA/Wr 104/24
This critical commentary concerns the judgment of the Voivodeship Administrative Court in Wrocław of 25 June 2024 (case no. I SA/Wr 104/24), in which the court dismissed the complaint of M LLC against an individual tax ruling issued by the Director of National Tax Information regarding the recognition of taxable income arising from the merger of sister companies with the same sole shareholder. The commented judgment is of precedential importance for corporate restructuring practices in Poland as it endorses a strict literal interpretation of the tax provisions, leading to economically unjustified taxation of reorganization operations. The court’s erroneous position creates a significant tax barrier to company consolidation within corporate groups, thereby hindering economic efficiency and the competitiveness of Polish enterprises in the European market. The author provides a critical analysis of the interpretation adopted by the court with respect to Article 12(1)(8d) of the Corporate Income Tax Act, demonstrating its inconsistency with the economic substance of the transaction, the principle of tax neutrality in business reorganizations, and the constitutional principle of equality in taxation. Particular attention is given to the court’s failure to recognize the absence of any actual economic gain in mergers between companies belonging to the same corporate group, which contradicts the fundamental principles of fair taxation – especially the principle that only real increases in wealth should be subject to taxation. The commentary presents arguments in favor of a systematic and teleological interpretation that would uphold the economic neutrality of such transactions, and includes de lege ferenda proposals aimed at explicitly ensuring the tax neutrality of these operations, in accordance with the axiological framework of EU law expressed in Council Directive 2009/133/EC.
The principle of ability-to-pay in the light of the Polish Constitutional Tribunal’s judgment in case K 21/14
In this article, the author examines the constitutional limits of taxing power in light of the ability-to-pay principle and the protection of human dignity, with particular reference to the Constitutional Tribunal’s judgment of 28 October 2015, case K 21/14 which articulated the duty to ensure non-taxation of the subsistence minimum and to provide mechanisms for making that guarantee effective in practice (including indexation). The author presents the structural elements of personal income tax (the rate schedule, tax-reduction amount/tax-free allowance, tax-deductible costs, aggregation or separation of income sources, and loss-offset rules) and argues that the effective protection of the subsistence minimum requires an assessment of the total tax burden rather than of the parameters of the rate-schedule “segment” alone. The coexistence of distinct regimes (general progressive taxation under the scale, the flatrate regime, and the lump-sum regime) produces inconsistencies in the reach of protective instruments and may undermine the guarantee function of the subsistence minimum. On this basis, the author formulates de lege ferenda proposals concerning the following: the introduction of a universal tax credit that would perform the function of a “tax-free allowance” across all income sources; the adoption of limited cross-basket aggregation or, alternatively, a uniform, source-neutral income threshold protected from taxation; allowance for partial cross-basket loss offset at least up to the level of the subsistence minimum; and the implementation of automatic indexation of relevant parameters. The proposed directions are intended to restore systemic coherence and conformity with the axiological framework of Articles 2, 30 and 84 of the Polish Constitution, as invoked by the Constitutional Tribunal in case K 21/14.
income aggregation vs. schedular separation
Solidarity Levy as a Tax Inconsistent with Constitutional Principles
This article examines the constitutionality of the solidarity levy regulations with the Constitution of the Republic of Poland, treating it as a tax despite its given name. The analysis has revealed a flagrant inconsistency of these regulations with key constitutional principles: firstly, with the principle of non-retroactivity of law, as the solidarity levy is imposed on income earned before the act came into force. Secondly, the principle of universality and equality of taxation has been violated, because despite the general criteria, the intention was to de facto burden only one entity. Thirdly, the individual assessment of the levy and the taxation of already earned income violates the principle of the protection of property rights, giving the levy characteristics of expropriation. The article also posits that a public administration body, in implementing the principle of direct application of the Constitution, should refuse to apply blatantly unconstitutional provisions, which would lead to the recognition of the paid levy as a tax not due and an overpayment subject to refund.
Unconstitutionality of the Solidarity Levy – A Blatant Violation of the Principle of Tax Justice
The solidarity duty is the name given to an additional personal income tax levied on combined income from different sources of income. Upon exceeding the threshold of PLN 1,000,000, taxpayers pay a levy of 4%. The purpose of this article is to examine whether this levy violates the principles of tax equality and fairness. It is necessary to identify the sources of tax principles and their application to individual income taxation. It is also necessary to discuss the structure of the personal income tax and differentiation of income sources. A later edition will address the solidarity levy, which is broken down into its compliance with the principle of tax fairness, both horizontally and vertically. This will allow us to determine compliance income tax, especially solidarity duty, with constitutional principles.
The Concept of Look Through Approach in Witholding Tax
The article examines the problems that may arise from application of look through approach concept on the grounds of withholding tax regime. The analysis covered the essence of this concept as well as particular conditions of its application. An attempt was also made to determine the most frequent mistakes, that lead to inappropriate understanding of this institution.
Commercial Goods and Materials in the Tax Book of Revenues and Expenses – Implementing Regulation and Statutory Regulation
The article deals with the subject of recording events by entities conducting business activity in the tax book of revenues and expenses, with particular emphasis on the purchase of commercial goods and materials, as well as determining the tax result – income or loss – based on the entries in the book. The author tries to show that the regulation on keeping the book goes beyond the scope of the regulations of the Personal Income Tax Act, because it regulates various methods of recording economic events in a manner different from those specified in the subject act for the generally understood costs of obtaining income.
The Applicant’s Position on the Issuance of Individual Tax Law Interpretations
The article addresses the issue of legal regulation under art. 14b § 3 Tax Ordinance Act according to which the applicant for an individual interpretation is obliged to comprehensively present the actual state of affairs or future event and to present his own position on the legal assessment of this factual state or future event. The author interprets provision 14b § 3 Tax Ordinance Act and formulates its position on the legal regulation in question.
The Conditions for Recognition of the Home Office as Fixed Place of Business Constituting the Permanent Establishment of the Employer
The article raises the issue of the constitution of the permanent establishment through the fixed place of business in the form of the Home Office of the employee. As part of the article, a detailed analysis of the provisions of the OECD Model Convention and the Commentary thereto, views in the doctrine, jurisprudence of the administrative courts and the interpretation practice of the tax authorities were presented. Special attention was paid to the notion “at the disposal” and “effective power to use the location”, as well as the controversies arising from the interpretation of those notions. Subsequently the exclusion from the definition of the permanent establishment for auxiliary activities was discussed, as well as the many doubts it raises. According to the author, the presented subject matter calls into question the premise of having a fixed establishment at the disposal of the taxpayer as a condition for the creation of the permanent establishment in the modern knowledge-based economy. On the other hand, in the circumstances of mobile work gaining popularity, it is necessary to regulate the allocation of income between the states with consideration to the postulate for minimizing of imposing of administrative burdens on the taxpayers.
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The Concept of “Economic Presence” for the Taxation of Cross-Border Corporate Income in the OECD Area of Activities
For several years, the OECD has been conducting analyses to adapt the taxation model of cross-border corporate income. This is in response to changing strategies for entering foreign markets, especially for digital economy companies that may not require a physical presence in the expanded market country. The paper examines the new nexus based on the concept of “economic presence” in the light of the erosion of the permanent establishment in the digital economy. Its main purpose is to assess the consequences of the introduction into international taxation of a mechanism that allows a source country to tax the income of a foreign company in the absence of traditional, “physical” manifestations of the presence of such a company in that country.
The Non-application of General Anti-avoidance Rules and State Aid Rules: Remarks on the CJEU Judgment in Engie
In its judgment of 5 December 2023 in joined cases C-451/21 P and C-454/21 concerning transactions made within the group of Engie companies, the CJEU restricted the Commission’s powers to interpret national legal provisions of Member States as regards the review on state aid, stating that such an interpretation cannot refrain from the interpretation made by tax authorities and jurisprudence of the Member States. The case in question concerned (1) the attempt to defer from the literal wording of the national tax law provisions and the use of purposive interpretation, which could not be conferred from the wording of the provisions in question as well as from other administrative acts in setting the “reference framework” for the purpose of the application of provision on state aid; and (2) the attempt to interpret the national provisions on the abuse of law in isolation from their interpretation made by tax authorities and jurisprudence. Although certain limits within the state aid review procedure had been conferred on the Commission, the CJEU’s judgment did not disregard the possibility to review the non-application of the provisions on the abuse of tax law (GAAR) concerning the conformity of their application with the EU provisions on state aid.
The Family Foundation Act introduced a new type of legal person into the Polish legal system. In principle, a family foundation is a taxpayer of corporate income tax, which is, however, exempt from taxation. This exemption does not apply to income from unauthorized business activities, as well as from certain income (revenues) from rental. Additionally, the foundation is a taxpayer, not a payer, in respect of the payment of benefits to beneficiaries. The aim of the article is to analyze the applicable legal solutions, and thus the possibilities of tax avoidance using a family foundation, especially in the context of the purpose of the Family Foundation Act. This will also allow for the formulation of de lege ferenda conclusions regarding the scope of the exemption from taxation.
The French Real Estate Wealth Tax as a Source of Inspiration for Polish Legislator
This article is a continuation of research on French tax law, which is regulated in principle in one legal act, that is the general tax code. The analysis carried out in this publication concerns the issue of taxation of assets invested in real estate, which is very important from the point of view of the Polish market, where for several years there have been plans to introduce a number of measures aimed at limiting price increases within this segment of the market. The presentation of the structure of the French property tax related to the real estate market may be an interesting point of reference for the Polish legislator, who has often relied on French models in the past. The summary indicates the potential possibility of using French solutions also in Poland, as one of the elements serving price stabilization on today’s real estate market.
Uncertain Future of Fiscal Penal Law (at the Crossroads between Criminal Law and Administrative Sanctions)
Fiscal penal law is a separate branch of criminal law (criminal law sensu largo), protecting the broadly understood public financial order (especially fiscal interests). The status of fiscal penal law is the subject of disputes and controversies – both historically and nowadays. The following circumstances undermine the ratio legis of fiscal penal law in its current form: 1) the lack of natural limits of fiscal penal law as a branch of law, 2) the increase in administrative sanctions (financial penalties), which displace or strengthen (cumulate) criminal penalties (also in the field of tax law and financial law) and 3) a clear encroachment of criminal law into the area of criminalization and penalization of tax crime (invoice forgery and VAT fraud). I agree with the proposal in the literature to replace fiscal penal law with an administrative sanction, but it should be supplemented with the explicit inclusion of the most serious cases of violation of public financial order in the regulations of criminal law.
Sprawozdanie z międzynarodowej konferencji naukowej pt. „Współczesne wyzwania prawa podatkowego” (16–17 grudnia 2024 r.)
Cross-Border Acquisition of Inheritance as an Event Taxable According to Personal Income Tax
The article examines the problems that may arise from the scope of tax jurisdiction specified in Art. 2 of the Inheritance Tax Act. The analysis covered jurisdictional liaison constructed using the conditions of citizenship and permanent residence. An attempt was also made to determine the consequences that exclusion from inheritance and donation tax may have in the light of the exclusion contained in Art. 2 section 1 point 3 of the Personal Income Tax Act. As a result, it was established that in certain situations, cross-border acquisition of an inheritance will constitute an event subject to personal income tax and not inheritance and donation tax.
Commentary on Judgement of Supreme Administrative Court of June 22, 2022 (III FSK 5090/21)
The subject of the commentary is to determine the tax consequences of a donation made to a person in a marital relationship based on community property and the scope of withholding agent’s obligations of a notary in connection with the preparation of such an agreement. The Supreme Administrative Court stated that the effect of concluding a donation agreement with a married recipient, if the subject of the donation is part of joint property, is the creation of a tax obligation on the part of the recipient and his or her spouse. At the same time, this court assumed that the notary should not be liable for failure to collect tax due to the taxpayer’s absence when preparing the notarial deed. The author critically evaluates these theses.
Sale and Assignment of Rights to Real Estate – Supply of Goods or Provision of Services?
The aim of the article is to classify the assignment of rights to real estate in the context of value added tax. The research method used is based on the analysis of the provisions of the VAT Directive and the related case law of the Court of Justice, as well as national regulations on the supply of goods, with particular emphasis on the supply of real estate. In the author’s opinion, narrowing the analysis only to the supply of goods seems to be sufficient – if a given activity cannot be classified as a supply of goods, it will be considered as a supply of services. The analysis was also carried out taking into account the decisions made in individual interpretations and binding rate information as well as the case law of administrative courts. The issue raised has not been published in the literature on the subject – apart from one study, it has not been taken up in the doctrine. The study entitles us to conclude that the supply of real estate constitutes a supply of goods, while the assignment of rights to real estate made in development and preliminary agreements constitutes the provision of services.
Interpretation and Application of the Provisions of Article 9, Point 17 of the Act on Tax on Civil Law Transactions in the Light Of the Interpretation of Tax Law Current Problems
The Act on Tax on Civil Law Transactions introduced tax exemption for the acquisition of the so-called “first apartment”. This relief is addressed to taxpayers who purchase a flat or house to meet their own housing needs. The exemption, which has been in force for a year, is a source of interpretation doubts due to the lack of case law and literature. This gap is currently filled by numerous individual interpretations, explaining the scope of the exemption, including issues not expressly regulated in the Act.
Concurrence of Sanctions in the European Union Tax Law – Comments on the Background of the Judgment Court of Justice of the European Union of 4 May, 2023 (C-97/21), MV-98
This paper analyses an applicability of a rule not to be punished twice in case of concurrence of tax sanctions on the background of the judgment Court of Justice of the European Union (C-97/21), MV-98. The Author studied limits of legislator’s power to set the regulations connected with concurrence of tax sanctions and established by European Law. In the Author’s opinion the main barriers in establishing such limits arise from the regulation of Charter of Fundamental Rights of the European Union and judgments of the Court of Justice of the European Union.
Conditional Discontinuance of Criminal Proceedings as an Alternative to the Institution of Desistance from Punishing the Perpetrator of a Fiscal Crime
The article is devoted to the institution of conditional discontinuance of criminal proceedings as an institution of degression of punishment, which may constitute a good alternative to certain measures related to abandonment of punishment of a fiscal crime. The author draws attention to the possibility of applying this institution to any fiscal crime – provided, of course, that the statutory prerequisites for it are met. In addition to the fact that the accused retains the status of an unpunished person, it is of major practical significance that for the conditional discontinuance of riminal proceedings, it is not necessary to pay the public receivables deposited in connection with the offence before a verdict is passed. Irrespective of the perceived advantages of this institution, the study also points to the weaker sides of the current regulation. The author included, above all, the manner in which the negative premise of conditional discontinuance of criminal proceedings is regulated, as well as the scope and content of obligations that may be imposed on the accused in a judgment ending criminal fiscal proceedings.
conditional discontinuance of criminal proceedings
Staff resources of the Ministry of Finance and its organisation – selected issues
The article is devoted to the broadly defined HR and payroll aspects of employees and officers of the Ministry of Finance, together with selected areas of its organisational structure.
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Exit Taxation and the DTT Between Poland and Brazil
The article addresses the issue of double taxation elimination in cases involving the application of an exit tax under the DTT between Poland and Brazil, which was signed in 2022. The author explains the key characteristics of the Polish exit tax and then elaborates on an appropriate allocation rule in the context of exit taxation. The article also discusses Article 24 of the Polish-Brazil DTT, which deals with double taxation. Finally, the author presents the specific solutions adopted in other countries’ double taxation treaties to eliminate double taxation in cases where an exit tax is imposed.
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