Immovable property tax (the recognition of a garage as the subject of separate ownership) SK 23/19
Ref. No. SK 23/19
JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND
Warsaw, 18 October 2023
The Constitutional Tribunal, composed of:
Wojciech Sych – Presiding Judge
Zbigniew Jędrzejewski
Jakub Stelina – Judge Rapporteur
Bogdan Święczkowski
Jarosław Wyrembak,
having considered, at a sitting in camera on 18 October 2023 – in accordance with Article 92(1)(1) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws – Dz. U. of 2019, item 2393) – the constitutional complaint of E. W. and R. W. lodged with the Constitutional Tribunal to examine the conformity of:
1) Article 1a(1)(1) in conjunction with Article 2(1)(2) in conjunction with Article 5(1)(2) of the Act of 12 January 1991 on Local Taxes and Charges (Journal of Laws – Dz. U. of 2017, item 1785, as amended) – insofar as, in the context of the property tax, the challenged norm makes it possible for ‘a garage situated in a residential building and constituting a separate unit’ to be recognised as “a non-residential part of” the said building – to the principle of particular specificity of legal provisions on taxation, derived from Article 84 in conjunction with Article 217, in conjunction with Article 64(3) of the Constitution, as well as to the principle of appropriate legislation, derived from Article 217 in conjunction with Article 84 and Article 2 of the Constitution;
2) Article 1a(1)(1) in conjunction with Article 2(1)(2) in conjunction with Article 5(1)(2)(a) and (e) of the Act referred to in point 1 above – insofar as, in the light of the challenged norm, the application of the relevant rates of the property tax to a multi-car garage inside a residential building is differentiated and contingent on whether the garage has or has not been recognised as the subject of separate ownership, and thus with regard to a multi-car garage situated inside a residential building and constituting the subject of separate ownership the applicable rate is the rate specified in Article 5(1)(2)(e), i.e. the rate for buildings, or “other” parts of buildings, and not the rate for residential buildings set out in Article 5(1)(2)(a) – to Article 31(3) and Article 2 in conjunction with Article 64(1) and (2), Article 84 as well as Article 32(1) of the Constitution.
adjudicates as follows:
I
Article 1a(1)(1) in conjunction with Article 2(1)(2), in conjunction with Article 5(1)(2)(a) and (e) of the Act of 12 January 1991 on Local Taxes and Charges (Journal of Laws – Dz. U. of 2023, item 70):
– insofar as, in the context of the property tax, the challenged norm makes it possible for ‘a garage situated in a residential building and constituting a separate unit’ to be recognised as “a non-residential part of” the said building – is inconsistent with the principle of particular specificity of legal provisions on taxation, derived from Article 84 in conjunction with Article 217 of the Constitution of the Republic of Poland;
– insofar as, in the light of the challenged norm, the application of the relevant rates of the property tax to a multi-car garage inside a residential building is contingent on whether the garage has or has not been recognised as the subject of separate ownership, and thus with regard to the multi-car garage situated inside the residential building and constituting the subject of separate ownership the applicable rate is the rate specified in Article 5(1)(2)(e) of the Act on Local Taxes and Charges, and not the rate set out in Article 5(1)(2)(a) of the said Act – is inconsistent with Article 32(1) in conjunction with Article 64(2) and Article 84 of the Constitution.
II
1. The provisions invoked in part I above, within the scopes indicated therein, will cease to have effect as of 31 December 2024.
2. The deferral of the moment when the aforementioned provisions will cease to have effect does not pose an obstacle to reversing the ruling issued in the complainants’ case with relation to which the constitutional complaint was filed.
Moreover, the Tribunal decides:
to discontinue the proceedings as to the remainder.
The ruling was adopted by a majority vote.
Wojciech Sych
Zbigniew Jędrzejewski
Jakub Stelina
Bogdan Święczkowski
Jarosław Wyrembak (dissenting opinion)