Does a taxpayer have to pay his taxes personally? Can the payment of funds to the tax office account be made by a third party? Despite the unambiguous verdict of the Polish Supreme Administrative Court (NSA), these issues are still controversial.
According to the current regulations, each taxpayer is personally liable for his obligations to the tax authorities. This means that he is legally obliged to personally pay his taxes.
From this rule the legislator envisaged only a small exception in the form of art. 62b of the Tax Ordinance, which allows for tax payment by:
- the taxpayer’s spouse, descendants, ascendants, stepchildren, siblings, stepfather and stepmother;
- the current owner of the subject of the compulsory mortgage or fiscal pledge, if the tax is secured by a compulsory mortgage or fiscal pledge;
- another entity, if the amount of tax does not exceed PLN 1,000.00.
Unfortunately, practical experience clearly shows that this solution is not sufficient for every taxpayer. There are still situations where tax is paid on behalf of the taxpayer by an entity that does not meet any of the criteria indicated in the act. How are such payments treated by institutions responsible for tax collection?
If the tax is paid to the tax office (or other tax authority) through a third party, the taxpayer may face a situation where his tax obligation will not be settled, because the tax administration will credit the payment to the entity making the payment and treat it as an overpayment to be refunded. According to some interpretations, the tax payment may be made only by the taxpayer or on behalf of the taxpayer by entities indicated in Article 62b of the Tax Ordinance. The tax regulations do not directly indicate the technical possibility of making the payment by an intermediary. As a result, some tax authorities assume that such a possibility simply does not exist.
A different opinion is expressed by the Supreme Administrative Court, which in its verdict of April 14, 2021 allowed for the possibility of tax payment by a third party. However, what is crucial for this decision – the NSA in its verdict introduced a clear distinction between a tax payment consisting of the settlement of a liability with one’s own funds and a payment transfer involving only the technical act of transferring funds from the taxpayer to the tax authority.
“The behavior of the payer consisting in taking the place of another person in the activity of paying the tax is only an actual action, and no norm of tax law prohibits such action.”
Source: Judgment of the Supreme Administrative Court of 14 April 2021.
II FSK 3305/18
According to this position, it is permissible for the very act of making the payment to be carried out by an entity other than the taxpayer – even if this entity does not fall within the regulations set out in Article 62b of the Tax Ordinance – if the following conditions are jointly met:
- the paid tax comes from the taxpayer’s funds,
- there is a legal relationship which is the basis for the payment by the third party,
- the tax authority responsible for settlement of the liability has knowledge that the payment will be made by a “messenger”.
Despite the favorable judgment of the Supreme Administrative Court, when deciding to make the payment of taxes due via another entity, one still should be prepared for the possibility of an unfavorable interpretation by the tax authorities and crediting the payment towards the liabilities of the entity making the payment and not the taxpayer.
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