The Impact of Abstract Control by the Constitutional Court on the Recovery of Property Tax Overpayments: Procedural Issues

Abstract

Abstract One of the powers of the Polish Constitutional Tribunal is the so-called abstract control related to the examination of the compliance of statutes (laws) with the Polish Constitution. The subject of these statutes may be tax matters. In recent years, the tribunal has repeatedly ruled on the consistency of such legal acts with the Constitution, including the reference to the provisions of the Law on local taxes and fees, which regulates a real-estate tax. Some of the rulings thereon were interpretive in nature, i.e. they indicated inconsistency with the Constitution within a specific understanding of the provision under verification. Their direct consequences were claims for excess tax made by real-estate taxpayers, which were envisaged by the procedures prescribed by the provisions of the law – the Tax Ordinance. In this regard, significant shortcomings of the above-mentioned act have been revealed. We may put forward a thesis according to which the procedure provided for in the Tax Ordinance for the recovery of excess tax in connection with the Constitutional Tribunal’s rulings is defective as, in particular, it does not take into account the rulings which are interpretative in nature. Verification of this research assumption requires the analysis of both the statutory provisions on the recovery of excess tax and the rulings of administrative courts that have been made thereon. The rationale for discussing this issue is its great practical importance, in particular, as indicated above, the fact that in recent years the judgments issued by the Constitutional Tribunal with regard to the Law on local taxes and fees regulating a realestate tax have precisely been of an interpretative nature.