On 13 January 2025, an application was lodged with the Constitutional Tribunal seeking a declaration of incompatibility with the Constitution of the Republic of Poland and ratified international agreements of the provisions of the Corporate Income Tax Act (hereinafter: “CITA”) governing the obligations of a withholding tax (“WHT”) remitter in respect of dividends. The case has been registered under reference number K 12/26.

The applicant challenged Article 26(1), (1c) and (1f) read in conjunction with Article 22(4), Article 22a, Article 22b and Article 22c of the CITA, in the version in force until 31 December 2018, as well as in conjunction with Article 8 of the Tax Ordinance. Although these provisions have since been amended, they may continue to serve as a legal basis for tax determinations concerning facts arising prior to that date (the concept of the so-called extended applicability of a normative act).

Judicial Law-Making by the Supreme Administrative Court. Nullum tributum sine lege?

The applicant advances a ground of challenge of an interpretive nature. The complaint does not contest the literal wording of the impugned provisions, but rather the settled judicial interpretation thereof in the case law of the administrative courts, which — in the applicant’s submission — has created an extra-statutory, law-making rule. Under that rule, a WHT remitter, in order to apply the exemption from WHT on dividend payments pursuant to Article 22(4) of the CITA, is required at the time of making the payment to exercise due diligence in respect of:

(i) verifying the status of the parent company as the beneficial owner of the dividend; and

(ii) verifying whether the dividend does not constitute income derived in connection with an artificial arrangement within the meaning of Article 22c of the CITA.

Neither of these obligations followed expressly from the wording of the CITA provisions in force until 31 December 2018. The due diligence requirement for remitters was introduced into Article 26(1) of the CITA only with effect from 1 January 2019, whilst the anti-abuse clause in Article 22c of the CITA — as the applicant emphasises — is addressed to the taxpayer, not to the remitter.

The primary and most fundamental limb of the applicant’s case is the alleged breach of the constitutional principle of statutory exclusivity in matters of taxation (nullum tributum sine lege) under Articles 84 and 217 read in conjunction with Articles 2 and 7 of the Constitution. The applicant submits that the imposition of additional substantive verification obligations on the remitter — the fulfilment of which conditions the availability of a tax exemption — was effected through expansive judicial interpretation rather than by Act of Parliament.

This line of argument is consistent with the established constitutional jurisprudence of the Tribunal, according to which all material elements of a tax relationship, including the obligations of a remitter, require unambiguous statutory regulation, and deriving such obligations through inferential reasoning falls below the standards of the rule of law. A remitter, who has access only to a limited body of information concerning the taxpayer, lacks both the authority and the investigative tools available to tax authorities to conduct in-depth inquiries into the status and economic substance of the dividend recipient.

The applicant further draws attention to a significant aspect of the legislative history. The original draft legislation introducing Article 22c of the CITA envisaged imposing on the remitter an obligation to obtain a declaration from the taxpayer confirming the non-application of the Article 22c clause; however, this obligation was ultimately omitted from the final version of the Act. Given that the legislature made a deliberate decision to exclude it, there is all the more reason to conclude that there is no basis for imposing upon the remitter, through judicial interpretation, a broad investigative obligation in respect of the very circumstances addressed by Article 22c.

Non-Compliance with European Union Law

The second limb of the application concerns the alleged breach of Articles 49 and 63 of the TFEU (freedom of establishment and free movement of capital) read in conjunction with Article 9 and Article 91(2) and (3) of the Constitution. The applicant observes that Article 22(4) of the CITA implements Council Directive 2011/96/EU (the “Parent-Subsidiary Directive”), which — unlike Directive 2003/49/EC on interest and royalties — does not include beneficial ownership as a condition for the application of the withholding tax exemption.

The Court of Justice of the European Union has confirmed in its case law (including in Eqiom and Enka, C-6/16) that Member States may not unilaterally introduce additional conditions restricting the right to a withholding tax exemption under Article 5 of the Parent-Subsidiary Directive. Yet, according to the applicant, domestic judicial practice effectively supplements the Parent-Subsidiary Directive with conditions not provided for therein, drawing — through a process of “combined” interpretation — on the provisions of bilateral double taxation treaties. The result of this interpretive mechanism is the differential treatment of parent companies depending on their state of residence, thereby infringing upon fundamental Treaty freedoms.

Practical Implications

In the applicant’s assessment, the consequence of the law-making interpretation of the impugned provisions is the effective equating of the remitter’s position with that of the taxpayer, together with the imposition of liability for circumstances falling entirely outside the remitter’s knowledge and control. The applicant also signals a systemic effect in the form of an increase in the effective tax burden on dividends paid out of Poland — potentially reaching as high as 38% (19% WHT in Poland plus taxation in the recipient’s jurisdiction) — which adversely affects the competitiveness of the Polish tax jurisdiction for investors and corporate groups.

From the perspective of WHT remitters — and in particular Polish subsidiaries making dividend payments to their foreign parent companies — the case K 12/26 is of critical importance. A finding by the Constitutional Tribunal that the impugned interpretation is incompatible with the Constitution would open the way to the reopening of tax and administrative court proceedings concluded by final decisions and binding judgments based on the challenged line of case law.

The case may also be of wider significance for any disputes — in both tax law and fiscal criminal law — concerning extra-statutory obligations imposed by public authorities on taxpayers or remitters in connection with the verification of counterparties.

Conclusion

The application before the Constitutional Tribunal forms part of a long-running debate on the limits of tax law interpretation and the permissible standards for imposing obligations on WHT remitters. Its resolution may have far-reaching consequences for hundreds of remitters who, under the legal framework applicable prior to 1 January 2019, applied the withholding tax exemption on the basis of the literal wording of the legislation, only to have that approach subsequently challenged by the tax authorities on the basis of the expansive, law-making interpretation adopted in the administrative court case law.

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