The pandemic has affected the way we shop. More and more frequently, shoppers order products (including Christmas gifts) online with delivery to a designated customer service point or parcel locker, so they don’t have to wait at home in the time slots indicated by the courier. More and more parcel lockers are appearing in housing estates and in the street. While it is clear that the construction of parcel lockers does not require a building permit, are parcel lockers subject to property tax?
By the end of last year, it was clear that Polish companies did not need to obtain building permits to build new parcel lockers. But this year, operators are faced with efforts by municipalities to charge property tax on parcel lockers.
Building parcel lockers no longer requires notification or building permits
Until September 2020, parcel lockers were considered by both administrative authorities and administrative courts as a “structure” (obiekt budowlany) within the meaning of art. 3 of the Construction Law (e.g. judgments of the Rzeszów Provincial Administrative Court of March 11, 2021, Case No. II SA / Rz 847/20; Łódź, January 17, 2019, II SA / Łd 761/18; and Warsaw , September 26, 2018, VII SA / Wa 2892/17). However, the case-law divergence concerned the question of whether a parcel locker should be treated as a ‘construction’ (budowla) within the meaning of art. 3 (3) of the Construction Act or a “temporary structure” (tymczasowy obiekt budowlany) under s. 3 (5).
The classification of parcel lockers as structures has led to the conclusion that they are subject to the building law, in particular the obligation to obtain a building permit. It has been recognized that a parcel locker, as a structure, is made by construction within the meaning of art. 3 (6) of the Construction Law, and construction consists of carrying out construction works defined in art. 3 (7) of the Construction Code. In turn, in accordance with art. 28 (1), construction works can only be started on the basis of a decision granting a building permit (subject to Articles 29-31, which provide for exceptions to this rule).
The law of February 13, 2020 amending construction law and certain other amended laws Art. 29 of the Construction Act by revising the catalog of objects not requiring a building permit or declaration under art. 30 of the Construction Act. The amending act entered into force on September 19, 2020. In accordance with art. 29 (2) (28) of the Construction Act, no notification or decision of a building permit is required for, inter alia, machines storing plots, provided that they do not exceed three meters in height .
Will operators pay another tax on parcel lockers?
However, the case law and the construction law amendment described above have caused discrepancies as to whether parcel lockers are subject to property tax under the local taxes and charges law.
According to art. 2 (1) of the law on local taxes and duties, land, buildings or parts thereof as well as constructions or parts thereof related to the operation of a business are subject to property tax . The law defines buildings, constructions and land, as well as buildings and constructions linked to the operation of a business, in art. 1a (1) (1) – (3). These two definitions refer to the notion of “structure” (obiekt budowlany) within the meaning of construction law. A structure is defined in art. 3 (1) of the Construction Act as “a building, structure or small architectural object, including installations ensuring the use of the object for the purpose for which it is intended, erected using products of construction “.
Therefore, the question is whether a parcel locker is a “construction” (in particular a construction, and not a building) within the meaning of the Construction Code, and if, as such, it is subject to property tax. .
On the basis of the judgment of the Constitutional Court of September 13, 2011 (case n ° P 33/09), the legal literature indicates that a construction is subject to property tax if it is explicitly indicated in art. 3 (3) of the Construction Law (defining the concept of construction), other provisions of this law or of the appendix to this law (R. Dowgier et al., Local taxes and fees: Comment (Lex 2021), commentary on art. 1a of the law on local taxes and levies). As these commentators write, the parcel lockers being expressly mentioned in art. 29 (2) (28) of the Construction Law, they can be imposed under the Law on Local Taxes and Charges: “So, are popular parcel locker structures within the meaning of the Law on construction? The answer to this question is in the affirmative. They also point out other arguments supporting this point of view. But they note that in the literature there are discrepancies as to whether parcel lockers can be subject to property tax (citing A. Kałążny, “Should real estate tax bepaid for equipment such as parcel lockers that are not structures? Przegląd Podatków Lokalnych i Finansów Samorządowych 2021 no. 5).
But according to other authors, the notion of “construction” within the meaning of art. 3 (3) of the Construction Law should not be interpreted broadly: “It is not possible to establish without contesting the meaning of the term ‘construction as used in the deed. We must therefore oppose any attempt at a broader interpretation of the term, especially since what we consider to be a construction directly determines the object of the imposition itself, that is to say the ‘one of the most important elements in establishing any tax. These essential grounds for taxation should not remain uncertain, but should be clearly identifiable on the basis of the express wording of the law ”(W. Modzelewski et al., Local Taxes and Charges Act: commentary (tene ed., Legalis 2021), commentary on art. 2).
Consequently, at present, the issue of the taxation of parcel lockers is still not resolved and opposing points of view are expressed. In particular, it can be interpreted differently depending on the place where the parcel locker is erected, in accordance with art. 1c of the law on taxes and local taxes, the head of the local municipality is the fiscal authority competent in matters of property tax. Nonetheless, landlords can appeal against property tax assessments to the local government appeals committee and then seek review by administrative courts.
Thus everything seems to indicate that if the question of the taxation of parcel lockers is not resolved unequivocally by the legislator, taxpayers will have to wait for a dominant case law to be established.