5780447500

204    Włodzimierz Nykiel. Ziemowit Kukulski RtsUicting tht Irgułatnr powrr to taxfj _ 205

204    Włodzimierz Nykiel. Ziemowit Kukulski RtsUicting tht Irgułatnr powrr to taxfj _ 205

Takie l

Unit of local community	fhc levci of partłdpalion in revcnucs from
	pcraooal incomc tax	corporate income tu
Communc (gmina)	39.34%	6.71%
District (powiat)	10.25%	1.40%
Pwancc (województwo)	1.60%	15.90%

units of '.ocal govcrnmcnt have a right to set the lcvcl of local taxes and charges to the extent eMahlishcd by statute.

Taking as tbe criterion the budget to which revenucs from taxes cooje in. all taxes in Roland shall bc dividcd into State ta.\es and local (communal) taxes. The State taxes are: personal income tax, corporatc incomc tax, taj on goods and scrviccs (the Polish vcrsion of value added tax). exdse duty and gamę tax. The local (communal) taxcs and duties inelude: real property tax, agricultural tax, forestry tax. inheritancc and gifts tax, tax on dvil law transactions, tax on mcans of transport, tax on possession of dogs and the so-called “tax card", which is a lump sum tax due on the incomc frotn individual’s smali business activity.

All local taxcs mentioned abovc constitutc revcnues of communes (gmina) the basie lcvei of local community (Art. 164 sec. I). Other units of local govcmmcnt - dislńct and provincc (voivodship) - do not have their own taxcv

Each unit of local govcrnmcnt partscipates to certain pcrcentagc in revenucs from personal incomc ta.\ and corporate incomc tax. which both are Statc’s taxcs (scc Tablc 1 bclow). The rules govcrning the allocalion of rcvcnues among dilTcrcnt lesels of local community arc contained in the Act of 13® Novemher 2003 on Revcnucs of the Units of Local Community.

Council of communc, which is a lcgislativc organ of that unit of self-governing community, has a right to set the levcl of local taxcs and charge* to the cxtcnd established by a statute and rclicfs and exemptions other than established by a statute. Communes cannot imposc ncw taxes or charges a* this would be contrary to the constitutional principle exprcsscd in Art. 84 and 217 tbat ordy lcgislatsvc power can imposc taxes and public duties.

Court judgments do not constitutc the source of law. Courts in Poland do not tbcrcforc participatc in the process of tax law enaetment. It docs not mcan howcvcr that their judgments, espccially judgments of administrative courts, arc dcvoid of importancc in tax matters. Court judgments play a vcry important role in the application of tax law as they contain guidclines as to interpretation of this branch of law. Morcovcr, the judgments are taken into account in the process of cnacting of tax law.

Ul

Polish Constitution of 1997 has imroduced inlo the legał system a com-mon constitutional oomplamt. A constitutional complaint mighl bc brought only against a normative act i.c. a statute. ratified intcrnational agreement. rtgulation. It is not possible to qucstion via constitutional complaint in-dividual deristons of courts or administrative organs.

According to Art. 79 of the Constitution. “cvcryone” can suhmit a eon-stitutional complaint providcd that his/her "constitutional freedoms or rights" were infringed. This provision sets also conditions of admissibility of such a complaint. Details conccrning the proceduro for submission of a cons-titutional complaint are regulatcd in The Act on the Constitutional Tribunal of l^- August 1997 (J. of L. No. 102, item 643; 2000 No. 48, item 552, No 53, item 638 and 2001 No. 98. item 1070). This mcans that the right to a complaint is vestcd in all thosc persons who may bc the holdcrs of constitutional rights or freedoms. All natural persons both Polish citizens and forcigner* havc the right to submit a constitutional complaint.

A constitutional complaint is submitted in casc of an infringement of a complainanfs constitutional freedoms and rights. This formula cncompas-ses all constitutionally protectcd rights and freedoms regardlcss of their naturę (the only exception is set in Art. 56 of the Constitution and conccms the right to asylum and refugcc’s status).

A constitutional complaint may only bc suhmitted in a sauation in which the violation of the compłainant's constitutional rights and freedoms stems froin an individual act of application of law (judicial or adminisirativc dccision). The complaint can only be submitted after the coraplainant had used all available appcal procedurcs before the uniwersał civil or adraimstrativc courts.

The Tribunal's dccision issued on the basis of a constitutional complaint has the same eflccts as a dccision issucd within the a posteriori contro! procedurę This mcans that a prońsion of law which on the basis of a constitutional complaint has bccn dcclarcd incompatihlc with the Constitution, is dcvoid of its binding force with an eftect erga omnes. The annulmcnt of a dccision. in the oonteat of which a constitutional complaint was launched. docs not occur automatically. Such a dccision can bc annuled upon a complai-nanfs rcqucst submitted to a competent organ. The same opportunitics arc open to all the other persons, to whom the “nonconformc” provtsion was applicd.

A vcry important role is played by the Ombudsman who performs an assessment of draft tax rcgulations. proposes legislative amendments and interpretes tax laws in the light to fundamental Citizen s and human rights : and freedoms.¹ The Ombudsman can ask the Constitutional Tribunal to

‘ Scc. K. Koicióski, "Rola Rzecznika Praw Obywatelskich w tworzeniu i wykładni rcawa podatkowego" (The rok of the Ombudsman in the proces of creition and interpretation cT tax law|. Knartaimk Prana Pod alken* po 2004. No. 3, pp. 61-75.