Service Infrastructure exempted from real property tax

Service Infrastructure exempted from real property tax

The Act on Local Taxes and Fees was finally amended. Pursuant to the Act amending the Act on Local Taxes and Fees of November 17, 2021 (Dz. U. 2021, item 2192), significant modifications were made to the conditions of real property tax exemption for railway land, buildings and structures. These solutions are beneficial for Operators of Service Infrastructure Facilities.

From when does the exemption apply?

From January 1, 2022, the land, buildings and structures included in the service infrastructure facility are exempt from real property tax. The above rule does not apply only to cargo terminals, which will be tax exempt from January 1, 2023.

The Act on Local Taxes and Fees refers to the definition of OIU contained in the Act on Rail Transport, i.e. to the provision of Article 4 point 51 of this Act, which stipulates that the OIU is a building structure along with the land on which it is located, as well as installations and devices, intended in whole or in part to provide one or more services referred to in Section 2 and 3 of Annex no. 2 to the Act on Rail Transport.

The building structure as such is defined in Article 3 Item 1 of the Act of July 7, 1994, Construction Law (consolidated text, Dz. U. of 2021, item 2351) as a building, structure or small architecture object, together with installations ensuring the possibility of using the object in accordance with its intended purpose, erected with the use of construction products.

What was exempted?

The interpretation of the provisions of the Act leads to the conclusion that from January 1, 2022, both land and buildings as well as structures constituting Service Infrastructure Facilities, such as:

1. Points of technical facilities;

2. Storage tracks;

3. Technical stands;

4. Seaport infrastructure with access to railway tracks;

As it was already mentioned, the new tax solutions with regard to land, buildings and structures forming part of the cargo terminals will only be applied from January 1, 2023.

Terms of exemption

Primarily, land, buildings and structures must be part of the OIU. The exemption is applied only to the part of land, buildings and structures that is used to perform the tasks of the OIU operator and provide services for railway carriers

In addition, the Service Infrastructure Facility must be made available on the principles resulting from Chapter 6b of the Act on Rail Transport, which primarily concerns non-discriminatory access rules and methodology for setting fees for access to the facility.

There will be definitely the so-called evidence issues, i.e. related to proving to the tax authority or court that the facility actually meets the criteria for tax exemption. Documents and circumstances confirming the fulfillment of the criteria in question include:

- making the OIU available on the terms specified in the European Commission’s implementing regulation no. 2017/2177 of November 22, 2017, on access to service facilities and rail-related services;

- having appropriate regulations of access that have been published adequately;

- having a price list constructed in accordance with the methodology provided for in Chapter 6a of the Rail Transport Act;

- entry in the OIU register.

The new regulations seem to be very beneficial for OIU operators, i.e. for railway carriers that have technical facilities and make them available to other carriers, and for independent rolling stock repair plants. The coming months will show - which is personally very curious to the authors of this article - what the approach of the tax authorities will be to the seemingly unambiguous provisions of the amended Act on Local Taxes and Fees.

Authors:

Michał Zięba, attorney-at-law,

Dominik Aptacy, attorney-at-law

HANTON Szalc Zięba & Partners Law Firm

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