Income generation costs – the taxpayer’s acquisition of an asset constituting a capital contribution in kind SK 53/21
Ref. No. SK 53/21
JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND
Warsaw, 8 April 2025
The Constitutional Tribunal, composed of:
Michał Warciński – Presiding Judge
Zbigniew Jędrzejewski
Rafał Wojciechowski – Judge Rapporteur
Jarosław Wyrembak
Andrzej Zielonacki,
Recording Clerk – Grażyna Szałygo,
having considered, at the hearing on 8 April 2025, Mr S.B.’s complaint lodged with the Constitutional Tribunal for it to consider the conformity of:
Article 22(1e)(3) of the Personal Income Tax Act of 26 July 1991 (Journal of Laws – Dz. U. of 2019, item 1387) “in the version that was binding until 31 December 2014 – insofar as, in the event of obtaining company or cooperative shares in exchange for a contribution in kind other than an enterprise, or an organised part thereof, the said provision limits the right to determine the cost of generated income referred to in Article 17(1)(9) [of the Act], in the amount of acquisition expenses not recognised as income generation costs, but actually incurred for the acquisition of other assets than those specified in points 1 and 2 – if the contribution comprises those other assets – strictly to the acquisition expenses of already existing assets, and thus the said provision deprives the taxpayer of the right to determine the income generation cost in the amount of asset acquisition expenses arising at the time of the acquisition”, to:
(a) Article 84 and Article 217 in conjunction with Article 64 of the Constitution of the Republic of Poland;
(b) Article 32(1) in conjunction with Article 84 and Article 217 as well as with Article 64(2) of the Constitution;
(c) Article 2 and Article 31(3) in conjunction with Article 84 and Article 217 as well as in conjunction with Article 64 of the Constitution;
adjudicates as follows:
Article 22(1e)(3) of the Personal Income Tax Act of 26 July 1991 (Journal of Laws – Dz. U. of 2025, item 163, as amended), in the version that was binding until 31 December 2014, insofar as it makes it impossible to recognise – as the cost of generated income referred to in Article 17(1)(9) of the Act – asset acquisition expenses arising at the time of the acquisition, is inconsistent with Article 32(1) in conjunction with Article 84 and Article 217 of the Constitution of the Republic of Poland.
Moreover, the Tribunal decides:
to discontinue the proceedings as to the remainder.
The ruling was unanimous.
Michał Warciński
Zbigniew Jędrzejewski
Rafał Wojciechowski
Jarosław Wyrembak
Andrzej Zielonacki