Courts side with taxpayers, or a collection of true stories. Does appealing against a defectively served ruling cure the mistake made by tax authorities?

Czas czytania: 5 minut.

Katarzyna STYPA-SADOWSKA
Tax Supervisor at RSM Poland
 

Not many taxpayers are aware of the fact that procedural regulations, i.e. regulations governing how tax audits, tax and customs inspections and tax proceedings should be conducted, are as important as the substantive regulations, i.e. those that regulate the way taxpayers are supposed to prepare their returns.

What are procedural regulations and why are they important?

Procedural regulations define the rights and obligations of tax authorities and taxpayers, which apply, among others, during a tax audit or tax proceedings. They define, for example, the proper way of commencing tax proceedings and serving notices on the taxpayer in the course of such tax proceedings.

Under the procedural regulations, the taxpayer also has the right to appoint an attorney to represent them before the tax authority.

Procedural regulations are an extremely important part of the tax law, and should tax authorities breach them, the taxpayer’s tax liability can be impossible to determine, even if the taxpayer’s error is undeniable.

Everybody makes mistakes: we should keep in mind that tax authorities also make mistakes. Knowing procedural regulations and how to use them is a great asset if you are having a dispute with the tax authorities.

How can you benefit from tax authorities’ mistakes?

For example, a procedural breach occurs when a notice of suspension of the statute of limitations is sent directly to the taxpayer concerned instead of to the attorney appointed by this taxpayer. In one of the earlier articles of this series we discussed a case like that. The oversight on part of the tax officials was pointed out, and as a result, the statute of limitations for some periods in this case expired. This, in turn, prevented the tax authorities from determining the amount of tax to be paid by the taxpayer, as a consequence of which the taxpayer was not obliged to pay more in tax.

On whom should tax authorities serve tax notices?

As a rule of thumb, in the course of any tax audit or tax proceedings, tax authorities should serve any and all notices directly on the taxpayer. The only exception to this rule is when the taxpayer appoints an attorney for a given case: tax authorities should then send all notices to the attorney.

This also applies to ancillary proceedings, i.e. proceedings to secure claims or grant an order of immediate enforcement. Despite certain doubts that emerged some time ago, the position of the courts on this matter has been clear for the last several years: any decisions and rulings should be served on the attorney in such cases.

What if a tax ruling is served defectively?

If a decision is served directly on the taxpayer instead of on their attorney, it does not enter into legal transactions, which means it is not binding and cannot be enforced. Clearly, the tax authority is most often unaware of this mistake and conducts further actions as if the decision they had issued was actually binding.

Thus, if the ruling is defectively served, taxpayers and attorneys are faced with a very difficult choice: whether to challenge the said ruling only once the tax authorities begin to enforce the ruling that was defectively served or whether to challenge it immediately, e.g. by filing an appeal against this ruling.

Does challenging a defectively served ruling cure the mistake made by the tax authorities?

Until recently, the choice of the right moment to appeal was extremely difficult, because the rulings of administrative courts were not uniform and some of them held that since the taxpayer appealed against such a decision, its defective delivery apparently did not have any negative consequences. Thus, some rulings offered a thesis that filing a complaint (or an appeal) basically cures the mistake made by the tax authorities. The rulings pointed out that since the taxpayer could file an appeal and did so in a timely manner, this meant that they did not suffer any losses resulting from the defective service.

As a result, taxpayers and attorneys have to decide what is best:

• to appeal against the ruling, thus risking that the tax authority of the second instance or the court would find that the taxpayer did not suffer any negative consequences; what follows is that the ruling would remain in force,
• not to appeal against the ruling, thus risking that once an appeal against enforcement measures is filed, the tax authority and the court (contrary to the uniform line of jurisprudence) decide that the defective service of the ruling does not mean that the ruling is invalid.

How did the Supreme Administrative Court (NSA) in a panel of seven judges address the defective service of tax notices?

The Supreme Administrative Court, in a panel of seven judges, resolved the doubts regarding the approach to defectively served tax notices in the resolution of 7 March 2022, file ref. no.: I FPS 4/22.

The court was supposed to respond to the question whether an act (an order of immediate enforcement) that was served directly on the taxpayer, instead of on an attorney, could be considered valid in the event that the taxpayer (or their attorney) filed an appeal (complaint) against it.

The NSA ruled that such defective service results in the ruling being deemed non-binding, also in the case in which a party to the proceedings (or their attorney) filed a complaint against it.

This resolution is very important and points out that the taxpayer, by filing a complaint against any defectively served ruling, is not remedying the mistake made by tax authorities. What matters here is the fact that the mistake was made in the first place and that procedural regulations were breached, and not the fact whether the taxpayer suffered any negative consequences of the tax authorities’ oversight or not.