In dubio pro tributario – the principle of resolving doubts in favour of taxpayers

Since 1 January 2016 unresolvable interpretative doubts over tax law are to be resolved in favour of taxpayers. On that date Article 2a of the Tax Act came into force. The language of the provision itself was controversial and the controversy focused on its scope of application.

Because of the numerous doubts, the Finance Minister issued on 29 December 2015 a general advance ruling (file no. PK4.8022.44.2015) to ensure that the new regulations are applied consistently.

In his ruling the Finance Minister explained that the in dubio pro tributario principle applied to doubts as to the interpretation of legal provisions. Article 2a of the Tax Act is addressed directly to tax authorities and tax inspection authorities. Nevertheless, every taxpayer may invoke this provision if, in his/her opinion, there are unresolvable doubts as to the language of tax regulations and tax authorities have failed to apply the provision.

The in dubio pro tributario principle covers especially tax proceedings which end with issuing an administrative act (i.e. a decision or order). It also covers proceedings concerning advance tax rulings. According to the minister, a “solution in the taxpayer's favour” is the optimal legal solution which follows from the interpretation of provisions. Therefore, it is advisable to consult a tax adviser during the proceedings.

In the minister’s opinion the application of Article 2a of the Tax Act requires that the “solution in the taxpayer's favour” be identified on a case by case basis as the term is not objective. An interpretation favourable to the taxpayer in a given case does not necessarily mean that tax authorities are obliged to assume the same interpretation in favour of another taxpayer in another case, even if Article 2a of the Tax Act is applied to the same provision of tax law.

Therefore, if tax authorities have doubts as to the meaning of a given provision in your case and those doubts cannot be removed in the course of reasonable interpretation, they will have to apply a meaning which is more favourable to you. Simultaneously, if there is more than one favourable interpretation, tax authorities will have to choose the most favourable of them. If tax authorities are unable to determine which of the interpretations is the most favourable, they will have to obtain your standpoint in the matter.

The Finance Minister also noted that tax authorities might refuse to apply the in dubio pro tributario principle if the taxpayer invoked provisions which were not adequate to the circumstances, adopted incorrect interpretational assumptions or incorrect reasoning, or if his/her arguments were poor when taken against the counter-arguments and, therefore, the doubts could not be considered unresolvable.

In the light of this ruling of the Finance Minister, the identification of benefits of various options with the help of a tax adviser may offer a significant added value. Expert assistance will help you find and analyse various favourable tax law interpretations which address your economic needs in the best possible way.

As a final note, please notice that a literal interpretation of this new principle does not cover all potential parties to the proceedings, i.e. withholding agents, tax collectors, legal successors and third parties liable for tax arrears, who should also be able to rely on Article 2a of the Tax Act. However, following a period of uncertainty, the prevailing opinion is that those other functions may also enjoy the protection under that article.  We would like to add that the Enterprises Act of 6 March 2018 has introduced similar regulations in respect of enterprises. The provision of the Enterprises Act is even broader than in the Tax Act because the new regulations require unresolvable doubts as to facts and circumstances and legal provisions to be interpreted in favour of enterprises. However, the Enterprises Act stipulates that such a favourable interpretation carries some restrictions, e.g. the case must be about imposing an obligation on an enterprise or limiting its rights and the interpretation issued in its favour must not negatively affect the rights of other parties.