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208 H lodzurjrn Sykirt. Ziemowit Kukulski

mtcrprctation violatcs :hc principle in dubio pro iribuiarlo and thc principle according to which only the legislative power has a right to imposc taxes and othcr public dutics.

On thc basts of the generał clause against thc drcutnvcmion of tu law, tax organs may omit thc effects of legał actions undcrtakcn by the taxpaycr, if thcy prove that such actions could not result in any profit* othcr than tax rcduction, incrcascd k>ss, incrcascd ovcrpaid lar or ta rcimbursement.

The abovc argumcnts havc bccn supportcd by thc Constitulional Tnbunal in its judgment of 11* May 2004 (K 4/03) in which thc generał anti-abwc clause (Art. 24b § 1 of thc General Tax Law) was found contrary to thc prindpłe of trust in dcmocratic stale of law (Art. 2 of the Constitution) and to thc prindpłe that only łegislative power has a right to imposc tases. estabłished in Art. 217 of thc Constitution.’ In thc TribunaTs view, the prindpłe of confidcnce in cnactcd law docs not allow to question any actions of a taxpayer which do not violatc law if their purpose is not forbidden by law, as there is no norm in thc tax law system according to which it would be forbidden for a taxpayer to minimalisc his tax burdens wita thc usc of legał mcans or according to which a taxpayer would bc obliged to act in a manner which would result in thc taxation at the highest possiblc lcvd. This means that as long as a taxpaycr’s actions do not violatc thc law ihey cannot bc scen as rcprchcnrible or illegal cvcn if thcy result in rcduction or cvcn toial dimination of the tax burden. There is no doubt howcvcr that such actions conlradict the aims of taxation, and conseąucntly the qucstion of their dimination is still open.‘

Until 31* Deccmbcr 2003 tax law differentiated thc lcvcl of tax burden depending on thc form of organization in which business activity was curncd out by taxpaycn. The taxpa>«rs of corporatc income tax pay corporate incomc tax at the rutę of 19%. According to Corporatc In-comc Tax Act of 15* Fcbruary 1992 thc taxpaycrs are: legał persons, entilies having no legał personality with cxccption of companics having no legał entity, however capital companics in organisation arc subjoct to tax, tax Capital groups (groups consisting of at least iwo companics mto a Ux system m thc b*bi of ArUdc 84 and 217 of tfce Constitution,” in: ha et let. fLt-ci* Jubileuszowa ku ad Profesora Andrzeja Kabata. Olutyn 20Oł, p. 102.

’ Sec: I. Lewandowska, “Prawo do legalnego unikania podatku" [The nght to Icgtl bu avo«danccJ. Rzeezpotpoltta 12.05.2001, No. 110 (6793), p. Cl; l> M. Malinowski Stosowanie przepisów dotyczących obejieia prawa podatkowego [The applicatioo ot thc prońaoa* coneenung abouse ot bu law). Przegląd Podatkowy 2005. No. 4. pp 3 4.

' Judgemeal of the Supremę Administratn-e Coort of 19 March 1997. SA Ra 3005/95, not published; the same in judgment of 27 January 1997, SA Ka 2784/95. Biuletyn Skarbowy 1998. No. 2. p 13.

baving lega! personality. which arc conncctcd by Capital links and fulfill othcr statulory conditions), companics with no legał personality having their seat or managcincnt board sn another country, if according to thc Uw of that country arc treated as legał persons and arc subjcct to taxation on totality of their income irrcspcctivc of the place whcrc this incomc comes from.

Taxpaycrs of pcrsonal incomc tax arc taxed at thc progrcssivc tax rates (sec Tablc 2 under point IV). As of 1* January 2004 Art. 30c was added in Pcrsonal Incomc Tax Act, according to which incomc from business activity carned by individuals outside ugriculiurc may bc taxed at 19% ratc. In this way incomc from business activity is laxcd at thc same lcvcl notwithstanding tbc form of organization in which business activily is performed by in-dividuals.

It must be noted that under thc Polish lax law, partnerships which are not legał persons arc not taxable entitics. Only partners in such partnerships arc subject to income tax and carrying out of cconomic Ktivity and gaining incomc in this way is treated bolh on thc hasis of Pcrsonal Incomc Tax Act and Corporatc Incomc Tax Act as one of the sourccs of incomc.

Individuals who arc taxpaycrs of pcrsonal income tax may choosc (thc so-called right of oplion) one of thc forms of lump-sum taxation. The taxpaycrs of corporatc income tax do not havc such a right. There exist the following forms of lump-sum UMktioo in Poland: Ux on cvidcnccd rcvenues, thc so-callcd tax card, and tax on clcrgy*s rcvcnucs. Individuais who pay pcrsonal incomc lax in thc form of lump-sum have a right to resign from this form of taxation and bc taxed on thc basis of geoeral rules estahlished by Personal Incomc Tax Act.

VI

Personal Income Tax Act contains provisions referring to family status of taxpaycrs. Such provisions conccrn: thc joint taxation of spouses and taxation of persons solitarily bnnging up childrcn own as well as adopted ones. Morcovcr, many tax excmplions and rdicfs in Pcrsonal Income Tax Act rcflect thc family status of taxpaycrs.

According to thc Polish Constilution marriage, being a union of man and a woman. as well as the family, mothcrhood and parcnthood is płaccd under protection and carc of the State (Art. 18). Polish law does not recognize othcr than marriage and family altcrnativc family structures like for cxample unmarried cohabitation.