The Supreme Administrative Court in its judgment on 28th of January, 2021, file ref. I FSK 1703/20 indicated that the legal and tax obligations resulting from chapter III chapter 11a of the Tax Code, i.e. related to the so-called the obligation to report tax schemes are included in the scope of the interpretation proceedings pursuant to Art. 14b et seq. Tax ordinance. This means that queries about MDRs can be subject to individual interpretation.
Due to the fact that the provisions on tax schemes raised many doubts, taxpayers began to apply for individual interpretations. However, the Director of the National Tax Information Office refused to issue interpretations in the field of MDR, explaining that the provisions on tax schemes are procedural provisions that cannot be subject to individual interpretations.
In the case in question, the Director of the National Tax Information refused to issue an individual interpretation, referring to the above-mentioned arguments. The case was appealed to the Provincial Administrative Court in Kraków, which confirmed the authority’s position by a judgment on 28th of May, 2020 and decided that the provisions on MDR reporting cannot be subject to individual interpretation, due to the fact that they belong to procedural provisions.
The Supreme Administrative Court overruled the ruling of the Provincial Administrative Court and the refusal to issue an interpretation by the Director of the National Tax Information and indicated that tax schemes may be subject to individual interpretations.
The Supreme Administrative Court in the justification of the judgment indicates that the provisions of Chapter III, Chapter 11a of the Tax Ordinance Act are not uniform. It is a heterogeneous set of legal norms, including both substantive and procedural regulations, including those covered by the aforementioned catalog of exclusions under Art. 14b § 2a of the Tax Ordinance, in particular “governing the jurisdiction, powers and obligations of tax authorities”. Nevertheless, in the scope covered by the company’s interpretation question, i.e. in particular with regard to the obligation to submit information on the tax scheme, these provisions should be considered substantive and subject to interpretation by the Director of the National Tax Information.
Firstly, these provisions constitute certain obligations of an analytical nature (see, in particular, Art.86f § 1 points 4-8 of the Tax Ordinance) and information (Art.86b to Art.86e of the aforementioned Act), fulfilling a function similar to information submitted in the form of tax returns and declarations. This is because they make it possible to correctly define the elements of the legal and tax relationship, in particular, such as the emergence of a tax obligation and tax liability, as well as the amount of the tax base. Consequently, due to the aforementioned ratio legis, these provisions somehow co-create regulations contained in particular in the substantive tax laws, which already directly determine the content and scope of tax obligations within the meaning of Art. 3 point 2 of the Tax Code. Admittedly, they are second-degree regulations, i.e. meta-regulations, which allow, in particular, the choice between the various taxation options resulting from tax regulations, which doesn’t change the fact that their application affects the content and scope of the material tax legal relationship (argumentum a rerum natura).
These are the so-called instrumental tax obligations that serve the proper performance of a tax liability. There should be no doubt that obligations of this type are expressed by substantive legal regulations, which the legislator expresses not only in the framework of the Tax Ordinance (cf. chapter 11, chapter III), but also in the acts regulating a specific tax (see e.g. Art. 99 of the Tax Act). on goods and services, art.45 of the act on personal income tax, art.26a of the act on corporate income tax, etc.).
In addition, the Supreme Administrative Court indicates that the inclusion of regulations on reporting tax schemes in section III of the Tax Code (chapter 11a), devoted to tax liabilities, i.e. the one that is constitutional from the perspective of the tax law system, refers to general issues of substantive tax law., related in particular to the emergence, regulation, expiration of tax obligations and tax liability for these obligations. This position of the Court is also supported by the arguments of a linguistic, purposeful and systemic nature, invoked by the applicant, i.e. the lack of a clear exclusion of the possibility of issuing an individual interpretation in the scope of obligations regarding the reporting of tax schemes (which results directly from the wording of Article 14b § 2a of the Tax Ordinance) and imposing a criminal sanction on the indicated obligation (cf. Article 80f of the Fiscal Penal Code).