Disproportionate Nature of Instrumental Obligations and Method of Taxation of a General Partnership as a Corporate Tax Taxpayer

Abstract

The granting of tax entity status to a general partnership raises not only systemic but also constitutional questions. The article examines the provisions granting tax entity status to a general partnership in the light of the constitutional principle of proportionality. In the author’s opinion, the irreversibility of granting a general partnership the status of a corporate taxpayer, in connection with the failure to comply with the obligation to submit information specified in the regulations, and making this status dependent on the fulfilment of formal conditions that are irrelevant from the point of view of the regulation’s objective, violates the principle of proportionality (derived both from Article 31(3) in conjunction with Article 64(1) and (3) of the Polish Constitution and from Article 2 of the Constitution). Moreover, the double taxation of a general partnership in the economic sense should be considered as an excessive interference (Article 2 of the Constitution) in a situation where the principle of single taxation of partnerships applies.