|Abstract: ||Register of land and buildings (also known as cadastre, hereinafter: the “Register”) is an information system ensuring the collection, updating and sharing, in a unified manner for the country, information about land, buildings and premises, their owners and other entities that manage them. In other words, the Register is an official record maintained in the IT system, which contains basic data on real estate.
The legal status of land and buildings register is confirmed by Article 21 of the geodetic and cartographic law, according to which the basis of economic planning, spatial planning, tax and benefits assessment, property labeling in land and mortgage registers, public statistics, real estate management and farm records are data contained in the land and building register. For this reason, the Register is the basis for basic information about the property from which the data are derived during the above-mentioned activities. Consequently, it affects practically every legal and factual issue related to real estate. Due to the subject matter of this dissertation, only the aspect regarding the impact of data contained in the land and buildings register on the "local government tax dimension", in particular the real estate tax, will be subjected to in-depth analysis
The above-mentioned provision norms strict correlations between tax law (regulating real estate taxation) and geodetic law (on the basis of which land and building records are kept). This connection is significant because the subject of taxation of property, agricultural and forestry tax is largely determined by geodetic law institutions. For this reason, the law of local self-government taxes has not created many of its own definitions, using their geodetic qualifications. In addition, any change in the registration data of real estate may result in a reduction or increase in the amount of its taxation. Data from the Register regarding a given
property is determined by, among others about what tax will be taxed (on real estate, agricultural or forestry) or on the application of an appropriate rate, so taxpayers (in order to submit a correct declaration) and tax authorities (to issue a correct decision) must know its geodetic qualification.
From the literal wording of Article 21 of the geodetic and cartographic law results in a certain automatism of the use of data contained in the Register by tax authorities, so (theoretically) in the tax assessment process they should not reach to other evidence (such as construction documentation, inspection, etc.). Due to the fact that data in the Register are introduced by authorized surveyors based on the guidelines contained in generally binding legal acts and that the Register is public, the principle of accepting data from the register as a basis for real estate taxation appears to be justified. In theory, such a solution should ensure transparency, predictability and efficiency of tax authorities, while excluding any errors that could occur in connection with incorrect assessment of evidence by tax authorities who do not have the knowledge in the field of geodetic law
However, due to the adoption of the above rule, there are a number of substantive and procedural doubts, which focus on the fact that the tax assessment can be made on the basis of unreliable and obsolete entries in the Register.
The above issues become particularly important in the case of local governments in which the Register is incomplete, incorrect or not updated. In such a situation, taxpayers often have no legal means to influence their own situation and are forced to pay higher taxes when they are under control or tax proceedings. This raises a justified sense of injustice among taxpayers who due to the current regulations, most often about the change of data in the Register (which directly affects the amount of their tax burden), only learn after the tax authority initiates the procedure.
Problematic situation is also posed by tax authorities, which are often forced to issue decisions that are contrary to the actual state but are consistent with the Register. They are then in a stalemate because they do not have the right to make decisions on the basis of applicable provisions, while being aware that the administrative act is subject to an obvious legal defect (which may involve the official's liability if this decision is annulled). Due to the imprecise nature of the regulations, simple matters regarding real estate taxation can be considerably prolonged over time.
The principal research problems in the area of consideration may be reduced to the following general questions:
1. What is the nature of the Register in relation to the real estate tax assessment? Are tax authorities bound by its data?
2. Are currently applicable regulations regarding Register and its impact on real estate tax being structurally correct?
The main purpose of this dissertation is to assess the currently applicable provisions regulating the keeping of land and building records and their impact on property taxation (which will be a response to the research problems posed) and the formulation of de lege ferenda applications. The considerations were based on the view that solutions (both under the current regulations and proposed amendments to the regulations) should pursue both fiscal objectives and, to the proper extent, provide legal protection for taxpayers. On the other hand, the current legal regulation of the examined matter results in a state of uncertainty both for taxpayers at the stage of filing tax returns and tax authorities during the conduct of proceedings and issuing decisions. Due to the extent and impact of these provisions on the tax status of millions of taxpayers, such a state is unacceptable
The basic assumption of formulating the thesis and individual hypotheses of the paper is that there is a close connection between the Register, the way it is run, its data and the process of introducing changes to it, and the real estate taxation. Its emanation is the fact that every act or decision of the registration authority causes direct effects the subject of taxation, tax base, rate, application of the tax exemption or the moment the tax obligation arises.
Bearing in mind the above, the main thesis of the dissertation is:
“Records of land and buildings is the basic and the most complete source of information about the subject of real estate tax, which is due to the fact that it is an official document - it can not be omitted by the tax authorities while determining the property tax. However, de lege lata, the tax authorities are strictly bound only by data in the records contained, to which the Law on Local Taxes and Fees applies in Article 1a para. 3 and their rejection is only possible exceptionally in case of strong axiological justification. However, in the remaining scope, when the registration data they are questioned in the course of tax proceedings, it is possible to carry out an effective counter-claim.”
The first chapter presents the history of Register, its legal basis, the manner of conducting, components and update modes. Next, the analysis of Article 21 of the geodetic and cartographic law and the scope of the use of registration data in specific areas of law (cited in this provision). As a result of the research, the first detailed hypothesis was confirmed, according to which the Register is a public register containing the comprehensive real estate data. At the same time provided in the geodetic and cartographic law and the Register regulations mechanisms should allow for preservation its regularity and timeliness. However, it has only a technical-declarative character and a derivative to the source documents constituting the basis for entries to her. Thus, it does not create any legal status. At the same time, the analysis of legal acts regulating the matters referred to in Article 21 of the geodetic and cartographic law clearly indicates that when legislator intends to give special meaning to the registry data he formulates a special provision in this matter. As a result, bearing in mind that a rational legislator would not introduce provisions that duplicate the norm it is impossible to say that Article 21 of geodetic and cartographic law gives binding character to data from the Register.
The second chapter of the paper aims to present the scope of use of registration data during the real estate tax assessment from the perspective of real estate taxation model adopted in Poland. The chapter contains a description of real estate taxation systems along with examples of mechanisms in force in particular European countries. The Polish model of real estate tax was presented along with its genesis. Then it was pointed out that the Register have an impact on the construction elements of the real estate tax. After the analysis, it was found that Register is the most comprehensive source of information regarding real estate that is relevant when determining tax liability in the real estate tax from the perspective of the surface model adopted in Poland. What is more, the attribute of the official document and the related presumption of credibility give a sense that the data contained therein is reliable and up-to-date and the tax assessment based on would be correct. At the same time, due to this nature, the registration data while determining the real estate tax cannot be ignored. Thus, there are a number of dependencies between the Register and the real estate tax, so to assess the real estate tax correctly it is necessary to know the regulations regarding Register. Nevertheless, due to the definitional differences between tax and geodetic regulations and the necessity to respect the public credibility of land and mortgage register, appropriate caution should be exercised when determining the real estate tax based on a registration data. This confirmed the second hypothesis that due to the property tax system adopted in Poland, where it is necessary to have
comprehensive information about the subject of taxation for correct assessment, the registration data should be the first evidence to be reached during the procedure. However, uncritical support of the proceedings solely on the data contained in Register may be incorrect and may result in its defectiveness.
The third chapter contains considerations regarding the nature of the data contained in the Register from the perspective of real estate tax. A review of the jurisprudence and views of doctrine is presented. In the further part of the chapter, the analysis of procedural and substantive law regarding the impact of registration data on the real estate tax was carried out. In the course of deliberations, it was determined that that, from the perspective of real estate tax, Register contains two types of data. First, i.e. land classification data (listed in Article 1a.3 of Law on Local Taxes and Fees), make up the “tax-law actual state” with which the tax law binds the tax obligation. Thus, in their scope, the tax is calculated based on the state disclosed in the Register, and not on the actual state which this classification registers. As a result, only the Register content is the subject of evidence in tax proceedings regarding the classification of land. On the other hand, the remaining registration data is solely an official document, which is a means of proof in order to determine the actual state, which in this respect is subject to real estate tax. In this scope the tax authorities are tied only by the rules applicable to the official document, which means that in the view of the principles of objective truth and the free assessment of evidence, during the tax proceedings it possible is to challenge a faulty entry in the Register through any other means of proof (documents, witness statements, examinations, experts). This confirms the third hypothesis according to which in terms of land, and more precisely their classification, the legislator decided that the registration data should be binding. Pursuant to the special provision of the substantive tax act, these data concretize construction elements of real estate tax, which are related to land, becoming part of the “tax-law actual state”. However, in the remaining scope, the data from the Register is only an official document, which in accordance with the tax procedure regulations can be undermined by an effective counter-proof.
In the fourth chapter, the constitutional aspects of establishing and applying tax law from the perspective of the Register and its use in tax assessment were raised. It was found that the Constitution directly affects the establishment and application of other branches of law. This is particularly evident in the analyzed case, as the reference to the Register in the Law on Local Taxes and Fees raises doubts from the perspective of the provisions of the Constitution, and at the same time the reference to the pro-constitutional interpretation may result in other
understanding of given provisions than their literal wording. As a result, the fourth and last hypothesis was confirmed, according to which due to the constitutional principles of tax law, reference to the Register in the Law on Local Taxes and Fees, and thus the establishment of registration data as an element of “tax-law actual state” is incorrect in the view of obligation to statutorily design construction elements of taxes. On the other hand, from the perspective of the pro-constitutional interpretation and its limitations, a literal interpretation of Article 1a.3 of the Law on Local Taxes and Fees unambiguously determines the material connection with the registration data that is indicated in it. At the same time, other constitutional principles allow to break the binding power of the record data in the case the tax assessment based on the Register would be grossly unfair.
To conclude the above, the position prevailing in the jurisprudence of administrative courts, recognizing the absolute binding character of Register in the course of determining the real estate tax is wrong, because it only concerns the scope indicated in detail in the Law on Local Taxes and Fees (with the exception of a strong axiological justification). For the same reason, the view that all registry data may be questioned on the basis of counter-proof is incorrect as well, since this is precluded by a clear provision of substantive law. The presented conclusions, with reference to the formulated research problem, allow to state that the design assumptions of the paper are correct, and confirmation of detailed hypotheses confirms the belief that the main thesis has been verified positively.
These considerations are based on the legal status dated January 1, 2018.|