Charakter prawny opłaty planistycznej w świetle orzecznictwa sądów administracyjnych przed wejściem w życie ustawy o finansach publicznych z 27 sierpnia 2009 r. i po nim

Abstract

This publication aims at presenting an issue of the legal nature of the planning fee and an assessment of a potential application of the relevant provisions of the Tax Law Act in this regard. Considerations, which are discussed in this article are based on the analysis of the judicial decisions of administrative courts which were made before an entry into force of the Public Finance Act of 27 August 2009, and those which have been were made after this period. The opinion that the planning fee is not a tax but it is a non-tax liability of the commune’s budget to which provisions of the Tax Ordinance do not apply dominated judicial decisions made before the entry into force of above-mentioned act. These decisions were grounded in administrative courts opinions that this fee cannot be regarded as a tax within the meaning of Article 6 of the Tax Ordinance. Moreover, courts’ decisions were not determined by tax authorities. Controversies concerning the legal nature of the planning fee have not ceased even when the Public Finance Act of 2009 entered into force. This happened despite the fact that non-tax budget liabilities of a public law nature were included in the above-mentioned Act. Nevertheless, it seems justified to state that judicial decisions of administrative courts, including the most recent judgments, were based on the opinion that the planning fee is a non-tax budget liability of a public law nature. Courts clarified that the provisions of the chapter III of the Tax Ordinance apply mutatis mutandis to these fees. This view was derived from Article 67 of the Public Finance Act. However controversies in judicature were raised, especially because of the fact that Article 60 of the Public Finance Law does not enumerate this fee in the catalogue of non-tax budget liabilities of a public law nature.