ULGA ABOLICYJNA A ZAPŁATA PODATKU ZA GRANICĄ. GLOSA DO WYROKU NACZELNEGO SĄDU ADMINISTRACYJNEGO Z DNIA 25 MAJA 2023 R. SYGN. AKT II FSK 2822/202
ABOLITION RELIEF AND TAX PAYMENT ABROAD. COMMENT ON THE JUDGMENT SUPREME ADMINISTRATIVE COURT 3 OF MAY 25, 2023, REF. NO. ACT II FSK 2822/202

Summary/Abstract: The article is a gloss on the judgment of the Supreme Administrative Court of May 25, 2023, ref. no. act II FSK 2822/20. The subject of the gloss is a critical assessment of the judgment in which the court found that if a taxpayer has not paid tax abroad and Poland does not have a double taxation avoidance agreement signed with a given country, the taxpayer cannot benefit from the abolition relief. The author of the commentary, justifying his critical position, pointed to an incorrect inter­ pretation of the possibility of settling the tax according to the proportional credit method, which consequently resulted in the refusal to use the abolition relief. The commented judgment is in line with the dominant line of jurisprudence in relation to situations where there is no double taxation avoidance agreement and at the same time the foreign tax has not been paid. Hence, questioning its operative part may have a significant impact on the practice of applying the law or inspire a change in the law (law­making), in accordance with the presented de lege ferenda conclusion. The study uses a dogmatic­legal method based on the analysis of legal provisions, case law, the position of tax authorities and the doctrine of international tax law.

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