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New definition of a non-building structure – draft new legislation

by Jakub Wajs

19 June 2024

The Ministry of Finance has published a draft amendment to the Local Taxes and Fees Act, including a new definition of a building and a non-building structure.

Earlier communications suggested that the lawmakers wanted to refine the legislation, ensure definiteness of tax laws, and maintain the fiscal status quo to the greatest extent possible. Time will show if they achieve these objectives, but we can already see that only some problems will be solved and new doubts will emerge in some cases.

The new proposal draws on the definition for tax purposes, the definition from construction law, and the case law (mostly taxpayer-unfriendly).

New definition of a non-building structure

The foundation lies in the definition of a non-building structure which distinguishes five categories of structures:

those listed in Annex no. 4 to the Act, as well as systems and equipment if they constitute a technical and useful whole together with that structure;
construction components of equipment that do not belong to the non-building structure;
construction components of wind turbines and power plants;
foundations for machinery and equipment, technically separate from that machinery and equipment;
connections to structures.

According to the new definition, these structures will be treated as non-building structures if they are made using construction materials.

The first category refers to Annex no. 4, which becomes one of the key elements of the new definition. It includes 28 structures which the lawmakers have decided to explicitly label as non-building structures. Most of the list copies the structures covered by the definition for construction law purposes.

However, the annex also includes certain items unlisted so far:

open-air: sport facilities and recreation facilities;
containers permanently attached to land;
tent covers;
pneumatic halls and many other.

Other changes

a building is defined similarly to the existing definition, except that a part of the structure listed in items 1–6 of Annex 4, which meets the criteria to be considered a building, is a building;
the definition of a structure is shorter than now as it includes “buildings and non-building structures”, which may have normative significance because the draft stipulates that the structure must be “made”, not “erected” using construction materials;
the technical and useful whole has been defined with the focus on achievement of a specific economic objective (functional link);
permanent attachment to land has been defined by reference to a broader interpretation of the term, i.e. counteracting external factors;
taxation of systems and equipment has been restored if they constitute a technical and useful whole together with the non-building structure.

It seems that the lawmakers have decided to expand the definition of a non-building structure, which may prove unfavourable to many taxpayers.

If you are interested in further information about or review of your real property tax affairs, please contact our experts now.

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Jakub Wajs

Attorney at law (Poland), Tax adviser (Poland)

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