Prawotwórcza działalność ministra finansów pod pozorem interpretacji ogólnej przepisów ustawy o wspieraniu nowych inwestycji

Abstract

In order to ensure uniform application of the tax law by tax authorities, the minister responsible for public finance (Minister of Finance, MoF) may issue general interpretations of the tax law ex officio or at the request of a taxpayer. When issuing general interpretations, the MoF is subject to the same rules of interpretation as any interpreter. In particular, when interpreting tax law, the MoF cannot change the content of the interpreted provisions of law, as such action would exceed the limits of interpretation and encroach on the territory reserved for the legislator. This article positively verifies the hypothesis that the MoF, in its general interpretation of 25 October 2019, while clarifying the scope of the exemption from taxation of income from activities in the Polish Investment Zone, added to the provisions of the income tax laws a condition of “close connections” for such exemption, which never existed in tax law. Thus, it unlawfully took over the role of the legislator. The article thoroughly analyses the reasons and consequences of such an action, including the most recent legislative changes implemented within the framework of the so-called Polish Deal.