Renata Kabas-Komorniczak

Tax adviser (Poland)
Branch manager
Phone: +48 22 696 28 00

In dubio pro triburatio

Since 1 January 2016 unresolvable interpretative doubts over tax law are to be resolved in favour of taxpayers. On that date Article 2a of the Tax Act came into force. The language of the provision itself was controversial and the controversy focused on its scope of application.

Because of the numerous doubts, the Finance Minister issued on 29 December 2015 a general advance ruling (file no. PK4.8022.44.2015) to ensure that the new regulations are applied consistently.

In his ruling the Finance Minister explained that the in dubio pro tributario principle applied to doubts as to the interpretation of legal provisions. Article 2a of the Tax Act is addressed directly to tax authorities and tax inspection authorities. Nevertheless, every taxpayer may invoke this provision if, in his/her opinion, there are unresolvable doubts as to the language of the tax regulations and the authorities fail to apply that provision.

The in dubio pro tributario principle covers especially tax proceedings which end with issuing of governmental acts (i.e. decisions and orders). It also covers proceedings concerning advance tax rulings. According to the minister, the "taxpayer's favour" is the optimal legal solution which follows from the interpretation of provisions. Therefore, it is advisable to consult a tax adviser during the proceedings. 

In the minister’s opinion the application of Article 2a of the Tax Act requires that the "taxpayer's favour" be identified on a case by case basis as the term has no objective character. An interpretation favourable to the taxpayer in a given case does not necessarily mean that the tax authorities are obliged to interpret the benefit of another taxpayer the same way in another case, even if Article 2a of the Tax Act is applied to the same provision of the tax law.

Therefore, if the tax authorities have doubts as to the meaning of a given provision in your case and those doubts cannot be removed in the course of reasonable interpretation, the authority will have to apply a meaning which is more favourable to you. Simultaneously, if there is more than one favourable interpretation, the authority will have to choose the most favourable of them. If the authority is not able to determine which of the interpretations is the most favourable, it will have to obtain your standpoint in the matter.

The Finance Minister also emphasised that the tax authority might refuse to apply the in dubio pro tributario principle if the taxpayer invoked provisions which were not adequate to the circumstances, adopted incorrect interpretational assumptions, incorrect reasoning or if his/her arguments were poor against the counterarguments and, therefore, the doubts could not be considered unresolvable.

In the light of this ruling of the Finance Minister, the identification of benefits of various options with the help of a tax adviser may offer a significant added value. Expert assistance will help you find and analyse various favourable tax law interpretations which answer your economic needs in the best possible way.

Please note that this new principle does not cover all potential parties to the proceedings, i.e. withholding agents, tax collectors, legal successors and third parties liable for tax arrears, who are also parties to the proceedings. The scope of application of the in dubio pro tributario principle is too narrow at the moment.

Rödl & Partner’s consultants remain at your service and will gladly represent your interests during tax proceedings. Our tax advisers in Gdansk, Gliwice, Cracow, Poznan, Warsaw and Wroclaw are at your service in this respect. We are also at your service to answer any other questions you may have with respect to tax advisory services in Poland.