Refusal to Issue an Individual Tax Ruling in Poland: Five Judgments on What the Authority Cannot Refuse

The phrase “this matter falls outside the competence of the authority issuing the ruling” recurs in Polish tax practice as a courteous formula of refusal. This article examines four judgments of the Supreme Administrative Court (Naczelny Sąd Administracyjny) and one judgment of the Voivodeship Administrative Court in Poznań, delivered between 2012 and 2025, which together delineate the duty of the Director of the National Tax Information (Dyrektor Krajowej Informacji Skarbowej) under Article 14b of the Tax Ordinance Act (Ordynacja podatkowa). It argues that the case law establishes three prohibitions and two permissions. The authority may not delegate the legal qualification of facts to the applicant, may not decline to construe provisions of other branches of law that co-constitute the tax norm, and may not disregard case law on which the applicant relies. It may, by contrast, refrain from engaging with every argument, provided that it issues a ruling capable of being followed, and it may refuse where the applicant seeks an assessment of facts or optimisation advice rather than an interpretation of law. The analysis closes with the statutory exclusions in force as of 1 October 2026 and with observations for practice.

Introduction

The formula is always the same and always polite. Often along the lines of “this matter falls outside the competence of the authority issuing the ruling.” It appears in summonses to supplement an application, in orders leaving an application unexamined, in the reasoning of negative rulings and in responses to complaints. It sounds like institutional modesty.

In substance it is simply a refusal to take a position: sometimes in the form of an order refusing to initiate proceedings or leaving the application unexamined, sometimes in the form of a ruling that interprets nothing. Each of these forms is a refusal to perform a statutory duty, because an individual tax ruling is not a privilege of the authority but its obligation, and the administrative courts have drawn the boundaries of that obligation considerably further than the authorities would prefer. Five judgments delivered between 2012 and 2025 form a coherent map of what the interpreting authority must do, what it may not do and what, admittedly, it need not do.

Facts May Be Inquired Into; Legal Qualification May Not Be Delegated (III FSK 1097/24)

A fund acquiring receivables asked the Director of the National Tax Information whether the agreements it had described in detail were subject to the tax on civil law transactions (podatek od czynności cywilnoprawnych). The authority summoned the fund to supplement its application by stating whether the acquisition of the receivables took the form of one of the transactions enumerated in Article 1(1) of the Act on the Tax on Civil Law Transactions, in particular a contract of sale. In other words: answer the question yourself, and we shall confirm. The fund replied with a description of the agreements rather than with a classification, whereupon the authority left the application unexamined. The Voivodeship Administrative Court in Kraków set aside both orders, and the Supreme Administrative Court (NSA), by judgment of 13 March 2025 (III FSK 1097/24), dismissed the authority’s cassation appeal.

The court formulated a rule that merits quotation in full:

The interpreting authority may ask about facts, but this must not be confused with asking about the legal qualification of facts. That qualification is for the interpreting authority to make.

A summons to supplement an application must be confined to information “which will not result in shifting the burden of interpreting the law onto the applicant”. The applicant’s role is to declare the facts; the authority’s role is to assess them under tax law and, where necessary, under civil, commercial, labour or intellectual property law.

The most consequential passage of the judgment, however, concerns statutory references. Wherever a tax statute refers to another statute, the provisions of the latter “supplement, or indeed fill in, the tax norm”, and the authority “is obliged to construe those norms to the extent necessary to establish a definition or concept operating within tax law”. The meaning that a separate statute gives to a concept “forms an integral part of the tax provision”, which was placed outside the tax statute “solely on account of the legislative technique adopted”. To refuse to construe a definition contained in a statute to which the tax provision refers is therefore to refuse to construe the tax provision itself. The NSA did not invent this in 2025: it cited ten of its own judgments delivered since 2010 and described the line as settled.

The practical test for an applicant is simple. If the summons asks what the agreement provides, it asks about facts and must be answered. If it asks whether the agreement is a sale, it asks for an assessment, and the proper answer is a description of the facts with a note that the qualification belongs to the authority.

Tax Law Does Not End at Tax Statutes (II FSK 1625/14 and II FSK 2108/12)

A daughter and her husband buy a flat; the loan is taken out jointly with her parents, all four being jointly and severally liable. The bank collects the instalments from the parents’ account, and the daughter and son-in-law transfer a thousand złoty a month to the parents, though not always regularly. The mother asks the authority whether repaying the instalments from her account constitutes a gift to her daughter. The Minister of Finance, then the ruling authority, left the application unexamined, explaining that the question concerned not the inheritance and gift tax but the Civil Code, since the civil law classification of an event must precede its tax classification, and the authority does not undertake the former. The court of first instance called that position “incomprehensible and manifestly defective”, and the NSA, by judgment of 21 April 2016 (II FSK 1625/14), dismissed the authority’s cassation appeal. Tax law “is therefore to be understood as all legal norms regulating the structural, that is the subjective and objective, elements of a tax, including legal norms not contained in tax statutes”. The Inheritance and Gift Tax Act does not define a gift; without Article 888 of the Civil Code there is no interpretation of that tax, and the authority cannot pretend not to know the provision.

Less than two years earlier the NSA had decided the case of a company that had commissioned the design and implementation of a measurement process management system compliant with an ISO standard, together with an exclusive licence to use the system so developed. The question was whether the expenditure constituted an indirect cost incurred for a consultancy service or an intangible asset subject to amortisation. The authority refused to initiate proceedings on the ground that the answer would require recourse to copyright law. The NSA, by judgment of 20 August 2014 (II FSK 2108/12), held that “tax authorities, when interpreting provisions of tax law, are obliged to draw on the provisions of other branches of law in order to explain the meaning of the concepts and institutions of those other branches which appear in tax statutes”, and that a refusal on that ground infringed Article 14b § 1 of the Tax Ordinance Act.

The same judgment, however, marks the boundary from the other side. The NSA set aside the first instance judgment favourable to the company and required an examination of whether the question in truth called for an assessment of the facts rather than an interpretation of the provision, recalling that “the institution of individual rulings does not serve to analyse the potential tax consequences of a taxpayer’s actions with a view to their optimisation” and that “an individual ruling is not equivalent to legal advice”. The authority cannot, therefore, escape from other branches of law, but the applicant cannot convert a ruling into free advice on how to structure a transaction, that is, into tax planning at the authority’s expense. Each side of the dispute is fond of citing one half of this judgment; intellectual honesty requires knowing both.

The Case Law the Authority “Need Not” Consider (II FSK 545/11)

The interpreting authority’s standard formula runs: the judgments cited were delivered in individual cases and do not bind the authority. The sentence is true and beside the point, since nobody claims that they bind. The NSA explained this in its judgment of 21 November 2012 (II FSK 545/11), in a case that began elsewhere: a company which had received a negative ruling, and had not challenged it, filed a second and identical application. The court of first instance held that the authority ought to have refused to initiate proceedings. The NSA disagreed: Article 14b § 1 of the Tax Ordinance Act provides that the authority “issues” a ruling, not that it “may issue” one, so the second application had to be examined.

On that occasion the NSA formulated the rule on case law. Since Article 14e § 1 permits the authority to amend a ruling of its own motion in the light of judicial decisions, the authority “a fortiori has a duty to analyse that case law in the proceedings leading to the issue of such a ruling, particularly where the applicant relies upon it”. Unjustified disregard of case law infringes the principle of trust in Article 121 § 1. The court grounded this also in Article 14a: the authority is to strive for the uniform application of tax law, which is impossible without reading the judgments. Since 2007, in the words of the NSA, the case law of the administrative courts has had “normative significance also in relation to other individual matters dealt with by way of rulings”. To pass over in silence a judgment on which the applicant based its position is therefore a matter not of the elegance of the reasoning but of its legality.

Must the Authority Engage With the Applicant’s Arguments? (I SA/Po 485/14)

This is the judgment the authorities cite most readily and most selectively. A municipal utility company had taken out a loan with interest subsidies from the National Fund for Environmental Protection and Water Management (Narodowy Fundusz Ochrony Środowiska i Gospodarki Wodnej) for a project co-financed by the Cohesion Fund, and asked whether the subsidies constituted its revenue and, if so, whether they qualified for the exemption available to a “project participant” under Article 17(1)(53) of the Corporate Income Tax Act. The authority answered: revenue yes, exemption no, because the company was a beneficiary rather than a participant. In its complaint the company alleged, among other things, that the authority had failed to address its arguments and had not answered the first of its two questions.

The Voivodeship Administrative Court in Poznań, by judgment of 30 October 2014 (I SA/Po 485/14), did not uphold that allegation, and the sentence it used has since led a life of its own in responses to complaints:

The essence of a ruling consists in assessing the correctness of the applicant’s position, not in polemicising with the theses of the administrative court judgments cited by the party or with the applicant’s argumentation.

The authorities quote the sentence and stop there. Yet in the same reasoning the court attached a condition: the authority need not answer every argument, but it must issue a complete ruling indicating the legal basis, because a narrower ruling “would not give the applicant the possibility of complying with it”. The allegation that the first question had gone unanswered failed only because the authority, by identifying Article 12(1)(1) rather than Article 12(1)(2) as the basis of the revenue, had in substance confirmed the company’s position on the very provision it had asked about. The absence of polemic is permissible; the absence of an interpretation is not. And in the end the same court set the ruling aside because the authority had misconstrued Article 17(1)(53): a company that has acceded to a tripartite subsidy agreement is also a project participant. The judgment with which the authorities defend themselves against procedural allegations is in truth a judgment holding that an individual ruling may infringe substantive law and that, when it does, it falls to be set aside. The proposition, occasionally encountered in responses to complaints, that a ruling “cannot infringe the law which it interprets” finds no support either in this judgment or in Article 57a of the Law on Proceedings before Administrative Courts (Prawo o postępowaniu przed sądami administracyjnymi), which expressly lists an error in the interpretation of substantive law among the grounds of complaint.

Implications for Practice: After a Summons, a Refusal or a Negative Ruling

Four observations follow for the drafting of applications and complaints.

First, facts exhaustively, qualification as the question. An application should describe the event so completely that the authority has nothing left to ask, while the question and the applicant’s position should address the legal qualification directly, including under the non-tax provisions to which the tax provision refers. A summons requesting a “clarification” which is in substance a legal assessment may be contested, and an order leaving the application unexamined on that ground is open to challenge (III FSK 1097/24, II FSK 1625/14): first by an interlocutory appeal (zażalenie) to the same authority within seven days, then by a complaint to the administrative court, with a fixed court fee of PLN 100. A refusal to initiate proceedings under Article 165a § 1 is challenged in the same way.

Secondly, case law and the authority’s earlier rulings should be cited expressly as the axis of the applicant’s position. Their disregard in silence founds an allegation under Article 14c and Article 121 § 1 of the Tax Ordinance Act (II FSK 545/11), not a complaint about style.

Thirdly, a negative ruling is challenged by a complaint to the voivodeship administrative court within thirty days of service, lodged through the authority, without any prior demand to remedy the infringement, with a fixed court fee of PLN 200. The court is bound by the allegations of the complaint (Article 57a of the Law on Proceedings before Administrative Courts), so alongside the allegation of an erroneous interpretation of substantive law it is advisable to raise procedural allegations: failure to assess the applicant’s position with legal reasoning (Article 14c § 1 and § 2), refusal to construe provisions co-constituting the tax norm (Article 14b § 1 in conjunction with Article 3(2)), and disregard of case law (Article 121 § 1 in conjunction with Article 14h). Each of these has one of the judgments discussed above behind it. The binding effect of the allegations concerns a complaint against the ruling itself; a complaint against an order leaving the application unexamined or refusing to initiate proceedings is examined on general principles, without the court being bound by the limits of the complaint (Article 134 § 1), and it was precisely that latitude on which the NSA drew in II FSK 2108/12.

Fourthly, the judgments cited by the authority should be read in full. It happens that a judgment cited for the proposition that no polemic is owed ends with the ruling being set aside, and that a judgment holding that a ruling is not legal advice contains a sentence on the duty to reach into other branches of law.

Conclusion: When a Refusal to Issue a Tax Ruling Is Unlawful

Five judgments, thirteen years, one conclusion: the competence of the interpreting authority is a duty, not a prerogative which the authority may decline to exercise when the question is difficult. The authority may not delegate the legal qualification of facts to the applicant, may not refuse to construe the provisions of other branches of law from which the tax norm is built, and may not disregard the case law on which the applicant relies. It may, by contrast, refrain from polemicising with every argument, provided that it issues a ruling capable of being followed, and it may refuse where the applicant in truth seeks an assessment of facts or optimisation advice. The legislature has added exclusions of its own: Article 14b § 5b, where there is a reasonable presumption that the described event may be the subject of a decision applying the general anti-avoidance rule or may constitute an abuse of law in VAT, and, with effect from 1 October 2026, Article 14b § 2a(4), which removes the provisions on reportable tax arrangements (schematy podatkowe) from the scope of individual rulings, applications filed before that date being examined under the previous rules. Those boundaries are drawn by statute, not by the authority’s discretion, and that is the whole difference. Outside them, each of these forms of refusal is subject to judicial review. The lack of competence invoked by the authority is, more often than not, a competence the authority prefers not to exercise.

Kancelaria Prawna Skarbiec prepares applications for individual rulings, conducts disputes with the tax authority before the Director of the National Tax Information and represents applicants in tax litigation before the administrative courts.

Robert Nogacki

Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.

The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.

Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.

He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.

Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.

Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.

He believes that the best legal advice is the kind that means the client never has to appear in court.