Opodatkowanie podatkiem od nieruchomości elektrowni wiatrowych. Niektóre aspekty podatkowe i ekonomiczne dla gmin

Abstract

After 1st January 2017, wind power stations are constructions composed of at least a foundation, tower, and technical elements, which shall be subject to property tax, and their tax basis is their value as referred to in property tax provisions. Provisions of Art. 2 point 1 and 2 of the Act on investment in the scope of wind power stations are provisions of law which further specify in detail the definition of construction from Art. 3 point 3 of the Construction Law Act, and, in addition, are provisions of construction law because, as being provisions of an act regarding taxes, they may constitute the basis to establish a tax law relationship, and in this case the subject of the case and a tax basis. The fact that Art. 17 of the Act on investment in the scope of wind power stations regarding the time limit for establishing and collecting property tax in accordance with the provisions applicable before the entry into force of the Act on investment in the scope of wind power stations was added as a correction in the course of parliamentary works does not breach Art. 118 par. 1 and 2 and Art. 119 par. 2 of the Constitution of the Republic of Poland, because the provision in question is strictly related to the matter contained in the said act. The fact that new rules (subject and basis) for taxation of wind power stations do not include, from 1st January 2017, sea wind power stations is not discrimination against land wind power stations and does not breach the rules contained in Art. 32 par. 1 of the Constitution of the Republic of Poland, because the conditions of construction works, costs of construction works and operational time of sea and land wind power stations are justified by their varying circumstances in the aspect of tax law provisions. In order to counter the effects of increased tax liabilities on account of property tax, and, consequently, likelihood of bankruptcy of such tax-payers and the resulting decrease of municipality income, decision-making bodies of municipalities should use available legal mechanisms in this scope, in particular the possibility to introduce, also in the course of a pending tax year, a definition of the subject of taxation and tax rates. This condition is not met by individual interpretations of the provisions of tax law, because they may be changed ex officio by the Head of National Tax Authorities.