The Limits of the Condition of Inconsistency with the Subject or Purpose of a Tax Statute or Its Provision Under Article 119a § 1 of the Polish Tax Ordinance

Abstract

The article addresses the issue of the limits of the condition concerning the inconsistency of a tax benefit with the subject or purpose of a tax statute or its provision, as one of the key elements in the application of the General Anti-Avoidance Rule under Article 119a of the Polish Tax Ordinance. The main thesis of the article is that the principal interpretative difficulties associated with the application of the GAAR do not arise from the identification of the tax benefit itself, but from the need to reconstruct the “subject” and “purpose” of the tax statute or its provision, and to determine the limits of this process. The author argues that the assessment of the inconsistency of a tax benefit should take into account the entirety of the taxpayer’s actions while at the same time respecting the requirements of the certainty and foreseeability of tax law arising from its constitutional standards.