ODPOWIEDZIALNOŚĆ ODSZKODOWAWCZA ZA WADLIWĄ DECYZJĘ PODATKOWĄ
LIABILITY FOR DAMAGES FOR A FAULTY TAX DECISION

Summary/Abstract: The protection of a taxpayer against the consequences of illegal forms of conduct by tax authorities is of utmost importance due to several reasons. First, the most frequent way in which tax obligations arise in the Polish legal environment is their creation by operation of law, i.e. without prior issuing a tax decision including the due tax amount by tax authorities. Second, filing an appeal against tax authorities’ decision does not defer, in most cases, its implementation. Third, such circumstances as a considerable degree of tax law complexity and its variability increase the risk of issuing a faulty decision by tax authorities. A faulty decision may also be the effect of Community Law violation. By the end of 2006 the liability for damages resulting from faulty tax decisions has been regulated by the Polish Tax Law (Article 260 paragraphs 1 and 2). The prerequisites of the liability for damages as based on the provisions of the said Law were only qualified faults of final decisions in administrative proceedings, on the basis of which the proceedings aimed at declaring their invalidity could have been initiated, as well as only qualified procedural defects being prerequisites of reopening the proceedings ended in a final decision. The provisions of the Tax Law determined also a special mode of claiming damages. The fact that the scope of tax authorities’ liability for faulty tax decisions was limited in the light of the Tax Law contributed to the attempts of seeking such grounds for liability directly in the Polish Constitution. As of 1 January 2007 the Tax Law provisions on liability for damages were amended. Under the new wording of Article 260 of the Tax Law, the liability for damages shall be governed by civil law provisions. Pursuant to the binding law, the basis for claims for damages is Article 417 para 2 of the Polish Civil Code. The practical importance of provisions on liability for damages arising from faulty tax decisions is not considerable due to the difficulties encountered in proving the liability of the State Treasury, proving the fact such damage was incurred, and in particular evidencing lost profits and their amount. This statement may be supported by the great number of cases for damages that were lost by the taxpayers.

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