An crucial legal and applicable problem is the anticipation of multiple taxation of the same excise product at the secondary phase of the taxation obligation1. It is clear that, in the normative sense, this rule was not explicitly formulated in the provisions of the Act on Excise taxation of 6 December 2002. However, the statutory definition of taxable events in the case of a secondary taxation work full justifies the formulation of the general regulation (maxima legis) concerning the application of that rule: whenever a product is the subject of those events involving different entities, a separate taxation work shall always arise. Nor did circumstantial rules give subsequent taxable persons any anticipation to deduct the amount of taxation charged to that product at the erstwhile marketing stages from their amount of taxation due for the subsequent event.
However, there are many disputed problems here. In this article, I will address the problem of changing the taxation usage of excise goods as a taxable event, which is the most typical case for the secondary taxation obligation. This event has a certain dynamics and may consist of respective phases where further actors participate. The most crucial steps in changing the usage of the product are:
the intention to change the intended use, which will actually be made by a 3rd organization (offering, issue, actual surrender of the product to the individual changing the intended use),
entry into possession of a product with the intention of changing the intended usage by the holder at a later date,
the actual (physical) change of destination by the usage or usage of the product creates a taxation obligation.
There is no clear judicial doctrine on this subject, and the taxation practice is besides inconsistent. In cases known to the author, there is frequently the view that the first case (ad. 1) is already a taxable event and that the declaration and payment of the taxation in this respect is not applicable to the formation of the taxation work in cases 2 and 3. Both offering and having and actually changing destinations are (as if) separate taxable persons, although mostly mercifully invoicing is made by the operators who hold the order of the owner of the product and carry those products.
The justification for this maximalistic view is rather simple: how the entity acquired an excise product, e.g. exempt for the intent of utilizing it in accordance with that purpose, abandons this intention, e.g. by offering it to a 3rd party, becomes a taxable person. This is simply a legitimate view, but this explanation results in the secondary taxation work transforming the excise work into a form of an exceptionally repressive punishment which clearly discriminates against taxpayers who, even in good faith, will get excise goods which were not taxed or were little taxed at the phase of the first taxation obligation.
Therefore, compliance with these rules should be examined both with the Polish Constitution and with EU law. In any event, it should be proposed to introduce the anticipation of deducting the amounts of taxation paid in erstwhile marketing phases from the amount of input taxation charged to taxable persons if they acted in good religion and with due diligence.
Prof. Dr. Witold Modzelewski
1Also known as the second-degree taxation obligation.
