The law firm HWW Hewelt Wojnowski Lindner and Partners has achieved another success in a dispute with tax authorities, successfully representing a company in the biomedical sector. The case, which ended with a verdict by the Provincial Administrative Court in Warsaw on November 13, 2025 (ref. III SA/Wa 1867/25), concerned the right to deduct input VAT in the context of determining the moment of delivery of software. The judgment provides important guidance for entrepreneurs acquiring intangible assets in the form of software licenses.
Allegations of the tax authorities and their basis
The dispute concerned an invoice documenting the purchase by the law firm’s client, a company in the biomedical sector, of a license for a specialized IT system for selecting implants. According to the contract and a mutually signed acceptance protocol, the software was made available to the company via remote access to the contractor’s virtual server. As of this date, the company deducted input VAT resulting from the invoice in its Q3 2014 settlement.
The tax authorities questioned the correctness of this settlement. In the opinion of the Head of the Warmian-Masurian Customs and Tax Administration Office, and then the Director of the Tax Administration Chamber in Warsaw, the software was actually delivered to the company only in Q2 2015. – on the date the files were saved on the CD medium presented to the authorities during the inspection. The authorities thus denied the company’s right to deduct input tax in Q3 2014, questioning the timing of the tax obligation on the part of the supplier and, consequently, the timing of the right to deduct on the part of the purchaser.
Complex procedural history
The case had an exceptionally complicated procedural course. After unfavorable decisions were issued by the authorities of both instances, the company filed a complaint with the Provincial Administrative Court in Warsaw, which dismissed the complaint, sharing the position of the tax authorities.
HWW filed a cassation appeal with the Supreme Administrative Court, which overturned the appealed verdict in its entirety and remanded the case for reconsideration. The Supreme Administrative Court said that the WSA committed a significant error – it completely ignored the analysis of the factual circumstances indicating the existence of the software as early as September 2014, and failed to examine whether it was permissible under freedom of contract to formally transfer the license for the software during its implementation phase. He also pointed out that it is impermissible to burden the taxpayer with the negative consequences of doubts that the tax authorities themselves failed to clearly clarify.
Reconsidering the case, the Regional Administrative Court in Warsaw fully agreed with the company.
The law firm’s legal argument and the court’s decision
Acting on behalf of the client, HWW Law Firm consistently built a line of argument based on three pillars: analysis of the content of the contract and acceptance protocol, the principle of freedom of contract, and the legal nature of the license as a property right.
First, the Firm showed that the contract between the company and the software supplier explicitly obligated the contractor to develop the IT system and make it available to the client, along with the granting of a license. The acceptance protocol of September 2014 confirmed the fulfillment of this obligation. What’s more, the work on the software was carried out in two stages – just completed on September 30, 2014, which meant that an important part of the program already existed and was ready for transfer.
Secondly, the Firm stressed that tax laws cannot modify civil law relations formed by the consensual will of the parties. According to Article 353¹ of the Civil Code, the parties to the contract have full freedom as to the form and content of the transfer of the license – including the right to transfer the rights to the software through remote access, without saving it on a physical data carrier. The tax authority, by making the moment of delivery dependent on the date of recording on the CD, has committed unauthorized interference in a legal relationship formed in accordance with the law.
Third, the Firm pointed out that the essence of a license is the transfer of a right, not the actual use of the subject matter of the license. The licensee obtains the right to use the software at the moment designated by the parties to the license agreement – and from that moment on, it is entirely up to the licensee’s will whether and when to exercise this right. The lack of actual use of the system on the date of acceptance does not nullify either the transfer of the right itself or the associated right to deduct input VAT.
The WSA in Warsaw, reconsidering the case under the influence of the NSA’s guidelines, fully shared this argumentation. The court found that the tax authorities had unfoundedly claimed that on September 30, 2014, the complete object of the contract had not been transferred. The invoice and the acceptance protocol – in light of the analysis of the contract and the principles of contractual freedom – confirmed that the provision of the service had just occurred in the third quarter of 2014, and the company was entitled to deduct input tax in that particular accounting period.
Effects of actions and protection of customer interests
In a judgment dated November 13, 2025. The Provincial Administrative Court in Warsaw revoked the decisions of the authorities of both instances and discontinued the administrative proceedings, concluding that there were no grounds for its continuation.
Thanks to HWW’s effective representation, the biomedical innovation company avoided the negative consequences of a multi-year tax dispute and obtained confirmation that its VAT settlement for Q3 2014 was correct.
The importance of the case and its implications
The case sets an important precedent for all businesses acquiring software licenses or other intangible assets, particularly when delivery is made remotely – via a virtual server, cloud or other digital channel, without physical media.
The ruling confirms that the tax authorities cannot redefine on their own the timing of the performance of a service contrary to the provisions of the contract and the will of the parties, if the contract is legal and an acceptance protocol has been drawn up. It also indicates that the lack of actual use of the software on the date of its legal transfer does not undermine the right to deduct input tax. Finally, and of particular importance in the procedural context, the NSA’s May 2025 ruling is a reminder that factual doubts unresolved by the tax authorities cannot be shifted to the taxpayer as a basis for denying his entitlement.
The case demonstrates that legal reasoning – combining analysis of civil law, tax law and case law of domestic and EU courts – can effectively protect entrepreneurs even in cases with a convoluted procedural history.
The law firm’s team responsible for handling the case
The following were responsible for handling the case on the law firm’s side:
- Mikolaj Hewelt – attorney, tax advisor, restructuring advisor, partner,
- Matthew Kowalski – legal counselor, tax advisor,
- Piotr Magda – legal counsel.
Frequently asked questions
Does VAT deduction for software depend on physical delivery of a medium, such as a CD?
No, the right to deduction is not dependent on a physical data medium. The contracting parties have the freedom to determine the moment of license transfer, including through remote access to a server, which is equivalent to delivery. The tax authority cannot impose a requirement for recording on a disc if the contract and acceptance protocol confirm the transfer of rights earlier.
When does the right to deduct input VAT arise when acquiring a software license?
The right to deduction arises at the moment designated by the parties to the license agreement, that is, at the moment of legal transfer of the right to use the software. The fact that the purchaser had not yet used the system on the date of acceptance does not negate this right. What is crucial is the fulfillment of the obligation by the supplier in accordance with the content of the contract.
Does the lack of actual use of software on the day of acceptance affect the possibility of tax deduction?
No, the lack of actual use of the program does not undermine the right to VAT deduction. The essence of a license lies in the transfer of a property right, not in the immediate physical use of the subject of the license. The deduction is available from the moment when the purchaser can freely dispose of the acquired right.
What significance does the acceptance protocol have for determining the moment of software delivery for tax purposes?
The acceptance protocol is crucial evidence that the supplier has fulfilled its obligations and delivered the software within the specified timeframe. In conjunction with the content of the contract, it confirms that the provision of the service took place in a given settlement period. The tax authority cannot ignore this document in favor of its own, unconfirmed findings.
Can tax authorities independently change the moment of software delivery indicated in the contract?
No, tax regulations cannot modify civil law relations shaped by the concordant will of the parties. The tax authority cannot redefine the moment of service performance contrary to the provisions of the contract if it is in accordance with the law. Factual doubts unresolved by the authorities cannot be shifted to the taxpayer as a basis for refusing entitlements.
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HWW Hewelt Wojnowski Lindner i Wspólnicy is a Warsaw law firm advising businesses and public entities. We combine experience in commercial law, energy, tax, data protection and litigation to deliver solutions tailored to our clients’ business realities.
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