According to media reports, the new tax would apply to large business entities. However, it is still unclear which ones exactly, as talks inside the government on the matter are ongoing. Initially there was talk of entities in the energy sector, mining and state-owned companies. According to the originators of the idea, the raised margins of these companies are a major contributor to the increase in inflation in Poland. However, there is now talk of taxing also large companies (those with a minimum of 250 employees). In fact, the tax then will not be a sectoral tax, as originally communicated, but may affect all entities employing the indicated number of employees. This means that all business entities will be covered, from the banking sector to consulting firms, grocery store chains and computer game developers. The stated goal of the regulation was to curb the excessive enrichment of energy entities from the energy crisis and to transfer the expected PLN 13.5 billion from this to compensate for high energy prices. In light of such a broad subjective scope, the above ratio legis will collapse…

A similar solution was worked on in the European Commission. On September 30, energy ministers of 27 member states reached an agreement on the possibility of introducing a tax on surplus profits of companies dealing with fossil fuels and a levy on surplus revenues from rising electricity costs (windfall tax on energy companies’ profits). The anticipated amount in this respect is approximately EUR 140 billion, which would be used to lower energy costs for consumers and for investment in renewable energy. A tax affecting only energy companies has already been introduced in Italy.

The construction of the Polish tax would include entities whose gross profit for 2022 is greater than their averaged gross profit for 2018, 2019 and 2021. The year 2020, due to significant business constraints, will not be included in the calculation. It is also envisioned that the tax could be reduced through a “mechanism for writing off investments from the tax base,” such as in the armaments sector. However, it is far easier to imagine armaments investments being carried out by a large energy company than by the aforementioned computer game development company. As a result, the latter will pay relatively more tax than the energy company, which will benefit from the deduction.

Despite the lack of specificity of this idea, constitutional doubts may arise already at this stage, if the tax was introduced in the shape outlined. Interestingly, the statements of the authorities do not use the name “tax, but” tribute”, although the name itself will not play a major role here (after all, the tax itself is a public tribute). If the proposed legal structure has all the features of a tax, then the constitutional requirements of tax law should be applied when introducing it. Based on current reports, it is difficult to conclude that such a structure is payable and thus will constitute a fee, not a tax. The taxpayer will not be able to expect direct consideration from the state – reducing the cost of energy even for all consumers thanks to money obtained from certain entities will not meet the equivalence condition. On this basis, income taxes could be considered a fee, since this money is used, for example, to build public roads, which, after all, taxpayers use and have the right to expect the state to build them.

One of the rules for introducing the tax is the prohibition of retroactivity, i.e. introducing it retroactively. Such a state of affairs may arise, since the proposed tax is to apply to 2022 profits, and given the current stage of the legislative process (according to Article 123 of the Polish Constitution, a tax law cannot be considered under the urgent procedure) it will not come into force until the end of 2022 at the earliest. Moreover, in the context of personal income tax, the Constitutional Court (ref. K 47/01) derived the principle that “changes in the legal regulation of personal income tax should be announced at least one month before the end of the previous fiscal year.” In the case of corporate tax, this requirement can be applied by analogy due to the elaborate organizational structures of large business entities and the need to receive a longer period to adapt to the new tax situation than in the case of an individual. Thus, if the legislature decided to follow this requirement and wanted to include 2023 in the tax, it would have to announce this no later than November 2022. Meanwhile, it is talking about covering the year 2022 …

According to art. 2 of the Constitution, as a rule of legal certainty, a given entity should be able to determine the consequences of its behavior at a given moment in the legal state. The taxpayer may also expect the legislator not to arbitrarily change the rules of the game during the course of the game. Therefore, the new tax should not cover the previous period, as it may worsen the taxpayer’s situation. If it applies to 2022 profits, not only will the advance requirement not be retained, but it will have a retroactive effect.

While it is true that the legislature has a great deal of freedom to shape taxes, a tax in this shape and circumstance may look more like an instrument of confiscation of property if the scope of the burden is too broad. It should be added that there are currently none of the three states of emergency introduced in Poland that allow for deviations from the aforementioned legislative standards.

It is already apparent that many companies in various sectors are currently recovering from a pandemic that has been difficult for them, and the unexpected new tax could make it even more difficult for them and negatively affect their employees. Following the announcement of the new tax in Poland, the Stock Exchange saw sharp declines in companies’ share prices on September 26. For the future, the unpredictability of tax lawmaking may deter potential foreign investors.

The shape of the tax at the EU forum is to be addressed by the prime ministers of the member states on October 6-7, while according to statements by representatives of the Polish government, the bill can be expected in mid-October 2022.