The use of reasoning per analogiam in tax law in light of constitutional regulations

Abstract

Open AccessThe use of reasoning per analogiam in tax law in light of constitutional regulationsMarek Słupczewski, Wojciech MorawskiMarek SłupczewskiSearch for more papers by this author, Wojciech MorawskiSearch for more papers by this authorhttps://doi.org/10.7767/9783205217381.151SectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinkedInRedditEmail About1. Introduction1Reasoning per analogiam, also known as reasoning a simile or inference from similarity, finds common use in many areas of social life.2 As Sherwin (following Margolis) points out, all human ways of reasoning derive or are analogous from nature.3 As civilisation has developed, analogy has permeated many areas of life, including tax law. Each time, however, the fundamental conditions of the field in which the use of analogy is referred to significantly modify the rules shaping its ultimate and permissible dimension. Sometimes, restrictions on its use may arise from domain-wide rules, customs, and acts of statutory law. Such a situation can be seen very clearly in tax law, where in most cases worldwide there is a reference to the primacy of constitutional regulations (if such an act exists in the legal order of a given state) and statutory regulations.The issue that is the subject of this article is worth attention also due to the fact that it is a carrier of controversies, now already passing, both as regards the scope and the very admissibility of its application in tax law. While strictly transposing analogy to the ground of constitutional norms, attention should be drawn to the thesis, already common in the doctrine of Polish tax law, that the scope of application of analogy has significantly evolved in the last several dozen years from the prohibition of using analogy to the practically unquestionable possibility of its application in specific cases. This issue is put in a synthetic way by Brzeziński, according to whom, in the last almost 20 to 30 years, the doctrine no longer notes a clear negation of the possibility of using analogy in tax law.4 It is interesting, however, that the change has occurred with a kind of stagnation of the normative dimension of constitutional provisions, at least in the scope important from the point of view of the analysed issue. For the purposes of the present considerations, the authors consider analogy to be reasoning per analogiam in the sense typical of continental law, inseparably connected with filling gaps in the law (i. e., in particular, analogy iuris and analogy legis and not analogy between precedents known to the common law systems).5 Polish conditions were taken as the main subject of the research, while cases of references to foreign orders were explicitly signalled each time. 2. Definition of reasoning per analogiamReasoning per analogiam has not received a uniform treatment in doctrine and case law. A number of definitions can be distinguished, which ultimately differ only slightly. In fact, there is a fairly high level of consensus in the doctrine on the basic definition of the issue, and a detailed, precise decision on which definition should take precedence is not necessary from the point of view of the present deliberations, although it is worth mentioning at least some of them. According to Weinreb, ‘an analogical argument can be described as reasoning by example: finding the solution to a problem by reference to another similar problem and its solution’.6 As indicated in turn by Tiscornia, analogical reasoning is part of the human cognitive processes that, in this context, are necessary to perform legal actions. It is distinguished from normative reasoning, which contains normative statements as premises and conclusions.7 According to Biegański, ‘in colloquial speech we call an analogy every incomplete similarity, similarity in some respect only’.8 Other commentators on the doctrine point out that analogy can be seen as inferring from the similarity of facts the similarity of their legal consequences.9 We are talking about a situation when one fact, normalised by law, is so similar to another, not normalised by law, that for the latter it is permissible, possible and acceptable to apply the legal effects of the former.10 According to Nowacki, analogical reasoning involves the application of a certain rule or legal norm to a case that is similar but not regulated by the law.11 Mariański points out, following Brzeziński, that analogy is in fact the creation of legal norms, at least for the purpose of resolving a particular case.12 This is because it means assuming the existence of a legal norm where, in the light of conventional methods of interpreting the law, it does not exist.13 It seems that this definition of analogy deserves to be called the most accurate. Finally, it should be emphasised that difficulties in defining the notion of analogy also occur in foreign legal orders.143. Constitutional conditions for reasoning per analogiam in Polish tax law – systemic backgroundIn the Constitution of the Republic of Poland of 2 April 1997,15 one can successfully find several norms influencing, either directly or less explicitly, the scope of application of analogy in tax law. In order to systematise the considerations, it is worth dividing them into three categories that are appropriate in the context of the current analysis. The first one should include constitutional norms, which objectively (or at least apparently) can be regarded as neutral from the point of view of analogy. In simple terms, norms that cannot be directly included in the other two categories (i. e., norms that justify the use of analogy or norms that limit the scope of analogy should fall into this category).Turning to the discussion of individual constitutional norms, Article 21 of the Polish Constitution first deserves attention; according to Article 21, the Republic of Poland protects property and the right of inheritance, while expropriation is allowed only when it is carried out for public purposes and with just compensation. This norm should definitely be categorised as limiting the scope of application of analogy. Article 84 of the Constitution of the Republic of Poland, located among the other duties of a human being and a citizen, assumes even more momentous significance. According to it, everyone is obliged to bear public burdens and benefits, including taxes, as defined by law. It is interesting to note that most other constitutions of European countries do not express explicitly the obligation to ‘maintain the state’ in this way.16 This provision would have to be qualified as justifying the use of analogy in a certain case, but due to the content of the constitutional norms cited further on, this qualification would be illusory.Article 217 of the Constitution of the Republic of Poland, according to which ‘The levying of taxes, other public tributes, the determination of entities, subjects of taxation and tax rates, as well as the principles of granting reliefs and remissions and categories of entities exempted from taxes shall be done by way of a statute’, acquires significance from the perspective of the considerations.17 This article is a supplement to Article 84 of the Constitution of the Republic of Poland and contains an enumeration of the structural elements of a tax that should be regulated by law. What is significant, however, is the circumstance that ‘the purpose of Article 217 was not so much to enumerate the structural elements of a tax that must be determined by law, but to define statutory exclusivity for all essential elements of the tax burden’.18 In practice, there has been a sustained expansion of the statutory matter of substantive tax law that goes well beyond the benchmark derived from Article 217 of the Polish Constitution. As an example, the tax base, conditions of payment, allowances and tax refunds can be pointed out. The justification given is that in the economic sense, these are the most important structural elements of the tax, determining the actual burden of taxation.19 As a consequence, it is assumed that the issues that do not have a significant meaning for the construction of the tax are intended to be regulated in the sub-statutory matter20 and that the scope of application of Article 217 of the Constitution of the Republic of Poland goes far beyond its literal wording. For each time a sub-statutory Act is at the stage of regulating an issue, it should be verified as to whether a given issue does not fall into the category of essentiality in the construction of a tax. Verification should also be done when the issue does not concern the levying of taxes, other public tributes, determination of entities, subjects of taxation and tax rates, as well as principles of granting reliefs and remissions and categories of entities exempt from taxes (i. e., it seemingly does not fall into the literal understanding of the provision of Article 217 of the Constitution of the Republic of Poland). This circumstance remains extremely important, as it imposes an obligation on the adjudicating panel to verify each time the possibility of applying reasoning per analogiam from the point of view of the relevance of the issue for which the adjudicator intended to use analogy in relation to the structural features of the tax. As a consequence, however, it is certain that the potential field for development by reasoning per analogiam is even narrower than a literal interpretation of Article 217 of the Polish Constitution would provide. This provision definitely falls into the category of limitations on the use of analogy. It is on the basis of the constitutional principle in question that the establishment of taxes and the decision of their shape and form have been subjected to statutory regulation and thus to the legislature.21 Thus formulated, the view ultimately outlines the accepted presumption of the impossibility for courts or authorities to shape tax obligations by analogy and demonstrates the rather exceptional and rare possibility of using per analogiam reasoning in tax law. This principle has a very momentous significance in the context of the basic framework for the use of reasoning per analogiam and makes the case that all three authorities (legislative, executive and judicial) are involved in the tax relationship. The use of reasoning per analogiam in tax law obviously deprives or limits the participation of the legislative authority and consequently leads to a certain extent to the assumption of its competences by the judiciary. In the context of the above considerations, an obvious conclusion should be drawn that analogy is fully subject to the limitations arising from Articles 84 and 217 of the Constitution of the Republic of Poland, which means that judicial rulings or decisions of tax authorities may in no case constitutively determine the subjects and objects of taxation, tax rates, the principles of granting reliefs and remissions and the category of entities exempt from taxes. The above principle should be extended to include all other relevant structural features of a particular tax. Therefore, there is no contraindication to decide, by analogy, on procedural issues, or to decide to a broader extent on issues outside the content of Article 217 of the Constitution of the Republic of Poland (e. g., on the tax payment deadline). However, the matter ‘regulated’ by analogy should not concern, for example, tax reduction mechanisms in a situation where this circumstance, as in the case of the tax on goods and services, constitutes its essential feature. In order to make the issues complete, it is necessary to turn to the category of constitutional norms that constitute specific incentives or formal orders to use analogy. This is because the judiciary should have a broader competence in a situation where, for example, a statute allows local government units to set the amount of local taxes and charges themselves. This is because the indications provided for in Articles 84 and 217 of the Constitution of the Republic of Poland are somewhat weakened in the context of the content of Article 168 of the Constitution of the Republic of Poland, under which local government units are authorised to establish the amount of local taxes and charges within the scope established by law. By virtue of the provision quoted above, a certain scope of constitutionally permissible possibility to limit the protection of the right to property has been delegated to local self-government units. This provision can be assigned to the liberty category from the point of view of analogy.An indirect normative constitutional basis for the application of per analogiam reasoning in tax law can be seen in the wording of Article 175 of the Constitution of the Republic of Poland, according to which ‘The administration of justice in the Republic of Poland is exercised by the Supreme Court, common courts, administrative courts and military courts’. The power of the courts to apply analogy derives from the supremacy of the Constitution of the Republic of Poland. Consistently, the rationale also lies in the principle of equal treatment in conjunction with the principle of legislative supremacy. For if two similar cases are to be treated in the same way, and if the legislator has laid down a principle for the treatment of one of the cases, it follows that the other case must be treated accordingly.22 The silence of the legislator, on the other hand, unless it concerns the taxability of the legal state in question or other components of the tax relationship mentioned earlier, does not relieve the authorities or the courts of their duty to resolve the case. Rather, these actors must use all possible means to reconstruct the legal norm, and analogy – in the context of unspecified alternatives and with a less certain degree of predictability – appears to be a good solution. Finally, of course, it should be noted that there is no provision in the catalogue of Polish norms prohibiting the use of reasoning per analogiam in tax law;23 thus, there is no negative regulation from which one should draw conclusions about the inadmissibility of the use of this type of reasoning. The totality of the provisions cited above and their interpretation make up the systemic background conditioning the existence and scope of analogy in Polish tax law.It should also be considered valuable to signal the dimension of the issue in exemplary foreign state orders. Consistently, in German tax law, up until the early 1980s, analogy was not accepted. This circumstance was supported by the argumentation for the constitutionally expressed principle of relevance in criminal matters in the German legal order, resulting from Article 103(2) of the Basic Law of the Federal Republic of Germany, nulla poena sine crime.24 In recent years, however, the German Federal Financial Court has confirmed the admissibility of the use of analogy in tax law, both in favour of and against the taxpayer.25 The law of the Czech Republic also recognises argument from analogy, albeit in a limited way.26 Namely, in the field of tax law, ‘it is not possible to construct by analogy other tax obligations or charges than those established by law. In addition to this, it can be noted that these limitations of analogical thinking also do not take the form of strict legal prohibitions, but interpretative directives imported by interpreting the constitutional foundations of these sectors of law.27 According to Article 11(5) of the Czech Constitution, ‘Taxes and fees may only be established by law’.28Generally speaking, similar norms to the one contained in Article 217 of the Constitution of the Republic of Poland (i. e., the most important one from the point of view of the considerations in question) can be found in the constitutions of many European countries, and in general, the principle of statutory exclusivity in tax law is widely accepted in contemporary legislation.29 The historical origin of the principle dates back to the Great Charter of Liberties introduced in England in 1215,30 while in Poland the principle dates back to the Koszyce Privilege of 1374.314. Analogy as a constitutional ‘source’ lawThe considerations would not be complete if due attention was not given to the juxtaposition of the analogy with the constitutionally shaped catalogue of sources of law. For in accordance with Article 87 of the Constitution of the Republic of Poland, the sources of universally binding law for the Republic of Poland are as follows: the Constitution, laws, ratified international agreements and regulations. The second paragraph additionally indicates that the sources of universally binding law for the Republic of Poland are, within the area of activity of the authorities that established them, acts of local law. The catalogue is complemented by the content contained in Article 91 of the Constitution of the Republic of Poland, according to which a ratified international agreement, once it has been promulgated in the Journal of Laws of the Republic of Poland, constitutes part of the domestic legal order and is directly applicable, unless its application depends on the enactment of a law.An analysis of the above leads to the conclusion that the Constitution of the Republic of Poland does not expressly provide for the possibility or impossibility of resolving tax factual situations on the basis of analogy. In the Polish legal system, however, judgments, which are the main carriers of rulings by reasoning per analogiam, are not among the official sources of law, the closed catalogue of which is contained in Article 87(1) and (2) of the Constitution of the Republic of Poland.However, analysing the issues from the other side, Article 87(1) of the Polish Constitution provides for sources of universally binding law. For obvious reasons, the jurisprudence of any Polish court will not constitute a source of law, let alone a ruling on analogy taken into account, as courts decide specific cases, and such jurisprudence does not, in principle, influence other rulings. However, the basic conclusion is that there is no prohibition on treating analogy as a source of law that is not universally applicable. When using the term non-universally binding source of law, qualifying an analogy as any source of law makes it more credible and facilitates its potential use in practice. Additionally, according to Morawski, reasoning per analogiam as a rule of legal exegesis qualifies as a non-self-existent source of law.32 Analogy can also be qualified as a source of law in the decisional sense, since ‘in the decisional view, the source of law is what is referred to in the decision to apply the law, i. e. the arguments used in the justifications of the decision, as far as the legal basis is concerned’.33 The assessment of whether a court merely interprets the law or creates it depends on the understanding of the law adopted and whether the law is merely a ‘dry’ record of the law or whether the law is composed of values characteristic of the rule of law.34To sum up, analogy does not constitute a source of universally binding law due to its exhaustion after one-time use, but the content of constitutional norms does not oppose treating analogy as a source of non-universally binding law of a peculiar, unorganised and secondary, informal character (i. e., analogy supplements rather than replaces the legal basis). It thus appears that the closed catalogue of sources of tax law is not of a completely closed nature, especially if one considers a ruling based on analogy to be a manifestation of judicial law, and to this extent the Polish Constitution does not constitute a limitation to the use of analogy in Polish tax law. Instead, one may see in it a specific encouragement to resort to reasoning per analogiam as an appropriate remedy in the absence of an adequate legal basis.5. The Polish Constitution – limitation or an encouragement for the development of analogy in Polish tax law?The totality of the above considerations leads to the conclusion that the Constitution of the Republic of Poland provides both encouragement for the use of analogy in Polish tax law and sets its impassable limits. In attempting to answer the question of which aspect plays a greater role, one should support the thesis of the greater importance of the limiting significance of the Constitution of the Republic of Poland for the use and development of analogy in Polish tax law, although the fact that the absence of a prohibition on the use of analogy constitutes the primary category of consent to its use remains of no small importance. The analysis of the judicial and administrative case law allows the conclusion that the parties to the tax–legal relationship and the courts have much more frequently invoked the Constitution as an act limiting its scope in tax law.35 This circumstance also results from the nature of reasoning per analogiam, as well as its history in Polish tax law. Indeed, one cannot lose sight of the fact that for years, analogy was considered a ‘forbidden tool’, and constitutional norms were invoked in the role of justifying the abandonment of the use of analogy in tax law.6. ConclusionsTurning to the final statement, a strong incentive for the judiciary, tax authorities and perhaps also taxpayers to use analogy in tax law can be seen in certain constitutional provisions. On the other hand, a general and well-established prohibition of the use of analogy in certain scopes, defining the limits of the use of analogy, can be directly interpreted from certain constitutional provisions. However, there is no general norm prohibiting the use of analogy in Polish tax legislation. The constitutional norms described in this article directly set the boundaries and become the vehicle for the guarantee that a taxpayer may not be burdened with any tax burden other than the one directly resulting from the law. This issue, in turn, should be viewed very broadly and should be linked to the prohibition of the use of aggravating analogy.36 This is because the application of analogy cannot lead to a different distribution of rights and obligations than that provided for in the law.37 The constitutional principle of statutory levying of taxes and the underlying guarantees of taxpayers’ rights vis-à-vis the authorities opposing the use of analogy do not prohibit the application of analogy in general but only in the event that reasoning per analogiam does not pass the test of benefit in a particular case, involving an assessment of whether the taxpayer’s situation is improved or worsened as a result of reasoning per analogiam. In summary, there is no provision in the Polish constitutional order that explicitly prohibits the application of reasoning per analogiam in tax law cases. However, there is also no norm explicitly permitting the application of analogy, just as it is impossible to find a norm specifically and explicitly specifying the scope of application of analogy. The Constitution of the Republic of Poland has left the scope of application of analogy in Polish tax law to the practice of law application.ReferencesLegal actsJurisdictionLiterature1 Research funded by the Narodowe Centrum Nauki [National Science Centre, Poland] as part of the Preludium-17 research project, 2019/33/N/HS5/02514; Zestawienie obszarów dopuszczalności stosowania rozumowania per analogiam w prawie podatkowym polskim oraz wybranych krajów europejskich, [List of areas of admissibility of applying the reasoning per analogy in Polish tax law and in selected European countries].2 K. Langenbucher, Argument by analogy in European law, Cambridge Law Journal 1998, vol. 57(3), pp. 481–521, p. 481. 3 E. Sherwin, A defence of analogical reasoning in law, The University of Chicago Law Review 1999, p. 1182. 4 B. Brzeziński, Wykładnia prawa podatkowego [Interpretation of tax law], ODDK, Gdańsk 2013, p. 139.5 The analogy typical of common law can be successfully referred to as ‘precedent’, but in Polish law the analogy legis and iuris predominate as methods of reconstructing the content of legal norms.6 L. L. Weinreb, Legal reason. The use of analogy in legal argument. Second edition, Cambridge 2016, p. 4. 7 D. Tiscornia, Three meanings of analogical reasoning in law, Law, Computers & Artificial Intelligence, Volume 3, Numbers 2/3, 1994, p. 107.8 W. Biegański, Wnioskowanie z analogii [Inference from analogy], Wydawnictwo Polskiego Towarzystwa Filozoficznego w Lwowie, TOM III, Lwów 1909, p. 17.9 A. Rychlewska, M. Hotel, Analogia jako metoda prawnicza [Analogy as a legal method], Kwartalnik Prawo-Społeczeństwo-Ekonomia, 2/2016, p. 33.10 Ibid, p. 33.11 J. Nowacki, Analogia legis, Państwowe Wydawnictwo Naukowe, Warszawa 1966, pp. 9–11.12 A. Mariański, Rozstrzyganie wątpliwości na korzyść podatnika: Zasada prawa podatkowego [Settling doubts in favour of the taxpayer: A principle of tax law], Wolters Kluwer 2009, p. 215.13 Ibid, p. 215.14 Defining analogy also poses difficulties in foreign legal orders. Among others – M. Atienza, Sobre la analogia en el Derecho. Ensayo de analisis de un razonamiento juridico, Madrid, Civitas, 1986, p. 179.15 J. of L. no. 78, item 483 as amended. 16 M. Safjan, L. Bosek, Konstytucja RP. Komentarz do art. 87–243 [Constitution of the Republic of Poland Volume II. Commentary to Articles 87–243], Komentarz do art. 217 Konstytucji RP [Commentary to Article 217 of the Constitution of the Republic of Poland], Warszawa 2016, Legalis, quoted: B. Banaszak, Porównawcze prawo konstytucyjne [Comparative constitutional law], Wolters Kluwer Polska, Warszawa 2012, p. 228 et seq.17 Article 217 of the Polish Constitution.18 C. Kosikowski, Finanse publiczne w świetle Konstytucji RP [Public finances in light of the Constitution of the Republic of Poland], Wydawnictwo Sejmowe, Warszawa 2004, p. 205 et seq.; A. Krzywoń, Podatki i inne daniny w Konstytucji [Taxes and other tributes in the Constitution], Vol. II, Wydawnictwo Sejmowe, Warszawa 2011, p. 204, in: M. Safjan, L. Bosek, ed., R.P. Konstytucja. 19 W. Modzelewski, Tworzenie materialnego prawa podatkowego – refleksje konstytucyjne [Creation of substantive tax law – constitutional reflections], in: P. J. Lewkowicz, J. Stankiewicz, Konstytucyjne uwarunkowania tworzenia i stosowania prawa finansowego i podatkowego [Constitutional determinants of the creation and application of financial and tax law], Temida 2, Białystok 2010, p. 89.20 Cf. judgment of the Constitutional Tribunal of 9 October 2007 in case SK 70/06, OTK-A 2007, No 9, item 103; see also judgments of the Constitutional Tribunal of 16 June 1998 in case U 9/97, OTK 1998, No 4, item 51; of 1 September 1998 in case U 1/98, OTK 1998, No 5, item 63 and of 9.2.1999, U 4/98, OTK 1999, No 1, item 4).21 W. Skrzydło, Konstytucja Rzeczypospolitej Polskiej. Komentarz [Constitution of Polish Republic. Commentary], Ed. VII, art. 217, Kraków 2013, LEX.22 K. Langenbucher, Argument by analogy…, p. 482.23 K. Radzikowski, Analogia w prawie podatkowym [Analogy in tax law], Przegląd Podatkowy 4/2007, pp. 18–22, p. 19.24 Basic Law of the Federal Republic of Germany of 23 May 1949, Bundesgesetzblatt – Federal Law Gazette, p. 1.25 C. Heber, C. Sternberg, Legal Interpretation of Tax Law: Germany, in: R. F. van Brederode, R. Krever, Legal Interpretation of Tax Law, Wolters Kluwer Law & Business, 2014, p. 174.26 J. Wintr, Metody a zasady interpretace prava, 2. Vydani, Auditorium, Praha 2019, p. 25.27 L. Hlouch, Teorie a realita pravni interpretace, Vydavatelstvi a nakladelstvi Ales Cenek, s.r.o., 2011. pp. 148–149.28 Constitution of the Czech Republic of 16 December 1992, Sbírka zákonů České republiky, No. 1/1993, supplemented by: No. 347/1997 Sb., No. 300/2000 Sb., No. 448/2001 Sb., No. 515/2002 Sb., No. 319/2009 Sb.29 M. Safjan, L. Bosek (eds.), Konstytucja Rzeczypospolitej Polskiej [Constitution of the Republic of Poland]… Legalis: For example, the Dutch Constitution of 1814, the Belgian Constitution of 1831, the US Constitution of 1787, the Greek Constitution of 1975, the Italian Constitution of 1947, the Spanish Constitution of 1978. In turn, the Basic Law of the Federal Republic of Germany of 1949 ‘does not explicitly indicate the obligation to regulate all the structural elements of a tax in a law’.30 K. Knawa, Zasada określoności zobowiązania podatkowego jako postulat nauki i wymóg prawny [The principle of determining the tax liability as a postulate of science and a legal requirement], Toruński Rocznik Podatkowy, UMK, 2013, p. 167.31 M. Bartoszewicz, Komentarz do art. 217 Konstytucji RP [Commentary to Article 217 of the Constitution of the Republic of Poland,], in: M. Haczkowska, Konstytucja Rzeczyposplitej Polskiej [Constitution of the Republic of Poland. Commentary], Warszawa 2014, LEX.32 L. Morawski, Zasady wykładni prawa [Principles of law interpretation], TNOiK 2006, p. 210.33 D. 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Crossref, Google Scholar Previous chapter Next chapter FiguresReferencesRelatedDetails Download book coverLegal Area StudiesVolume 5 1st editionISBN: 978-3-205-21737-4 eISBN: 978-3-205-21738-1HistoryPublished online:March 2023 Information© 2023 Böhlau Verlag, Zeltgasse 1, A-1080 Wien, ein Imprint der Brill-GruppeThis publication is licensed under a Creative Commons Attribution – Non Commercial 4.0 International license, at https://doi.org/10.7767/9783205217381. For a copy of this license go to https://creativecommons.org/licenses/by-nc/4.0/. Any use in cases other than those permitted by this license requires the prior written permission from the publisher.PDF download