Method of calculating the area to be used as the taxable area for buildings or their parts – commentary to the judgement of the Supreme Administrative Court of 24 May 2022, III FSK 590/21

Abstract

The gloss to the judgment of the Supreme Administrative Court of 24 May 2022, III FSK 590/21 is critical in character and the arguments against the validity of the judgment were focused primarily on the analysis of the normative content of article 4, paragraph 1, point 2 and paragraph 2 in connection with article 1a, paragraph 1, point 5 of the Act of 12 January 1991 on Local Taxes and Fees. To conduct the study, the dogmatic-legal method was applied, which consisted of determining the content of the legal norm of the relevant provisions and their interpretation, as well as the analytical method, which analysed the literature on the subject and the jurisprudence of administrative courts. As a result of the research, it was concluded that the word “part” in the phrase “part of a floor with a clear height” is legally significant and thus introduces an obligation to include only a part of a floor with a clear height in a preferential manner, i.e. 50%, or to exclude such an area in the process of determining the tax base in the property tax. Despite the favourable outcome for the taxpayer, it was considered that the approach expressed by the Supreme Administrative Court in the judgment under commentary should be criticised.