Supreme Administrative Court: depreciation of donated assets and constitutional protection of pending interests

ALERT PODATKOWY Naczelny Sąd Administracyjny amortyzacja darowanych składników majątku a konstytucyjna ochrona interesów w toku

Background to the case

On 4 November 2025, the Supreme Administrative Court issued a judgment in case no. II FSK 1591/24 concerning the continued depreciation of fixed assets and intangible assets acquired by way of donation prior to 1 January 2018. The case forms part of an established line of case law initiated by the Supreme Administrative Court’s judgment of 16 January 2025, case no. II FSK 663/22, in which the court conducted a diffuse review of the constitutionality of the provisions of Article 23(1)(45a)(a) of the Personal Income Tax Act.

Key points of the judgment

The Supreme Administrative Court, sitting in the case II FSK 1591/24, reiterated the reasoning set out in the judgment of 16 January 2025, holding that:

Article 23(1)(45a)(a) of the PIT Act – in the version in force since 1 January 2018 – is inconsistent with the principle of protection of pending interests arising from Article 2 of the Constitution of the Republic of Poland, in so far as it deprives the taxpayer of the right to treat as tax-deductible expenses depreciation write-offs on the initial value of fixed assets and intangible assets acquired free of charge (by way of a donation exempt from inheritance and gift tax), the depreciation of which commenced before 1 January 2018.

As in previous rulings (including II FSK 663/22 and II FSK 934/24), the Supreme Administrative Court indicated that the absence of transitional provisions and a mere 34-day vacatio legis constitute a violation of the principles of a democratic state governed by the rule of law and the principles of legal certainty and stability.

Diffuse constitutional review

The Supreme Administrative Court emphasised that, when assessing the case, account must be taken of the case law of the Constitutional Tribunal, including the established views of the Constitutional Tribunal regarding the protection of pending interests and acquired rights (including the judgments of the Constitutional Tribunal of: 25 November 1997, ref. no. K 26/97; 25 June 2002, ref. no. K 45/01; 10 February 2015, ref. no. P 10/11).

In its reasoning, the Supreme Administrative Court indicated that, by applying the principle of the state’s loyalty towards the citizen, administrative courts may carry out a diffuse review of the constitutionality of provisions if their application would lead to effects contrary to the Constitution – in this case, to the principle of the protection of pending interests and legitimately acquired rights.

Significance of the judgment

The judgment of 4 November 2025 confirms the established line of the Supreme Administrative Court’s case law, according to which:

taxpayers who commenced depreciation of assets acquired by way of donation before 1 January 2018 are entitled to continue doing so under the rules in force prior to the amendment,
by introducing changes without transitional provisions, the legislature breached the principle of protection of legitimate expectations in the state and the law,
administrative courts, acting under Article 188 in conjunction with Article 145 § 1(1)(a) of the Code of Administrative Procedure, may refuse to apply a provision that is contrary to the Constitution in an individual taxpayer’s case.

HWW Commentary

The Supreme Administrative Court’s judgment has significant practical implications for taxpayers who, in previous years, commenced depreciation of assets acquired by way of donation, and whose right to continue such depreciation after 2018 was challenged by the tax authorities.

The ruling confirms that, in the absence of intertemporal provisions and given the short vacatio legis, taxpayers acted in good faith in reliance on the law in force, exercising their legitimately acquired rights. Consequently, depriving them of the possibility of continuing depreciation constitutes a violation of the constitutional principle of the protection of interests in progress.

Furthermore, a similar issue – the recent amendment to the regulations concerning the depreciation of residential premises – is currently the subject of pending proceedings, in which similar arguments from the claimants regarding constitutional matters can be expected.