Pursuant to Article 34(1) of the Entrepreneurs Act, an entrepreneur may submit a request to the competent authority or the relevant state body for clarification regarding the scope and manner of application of the provisions imposing an obligation on the entrepreneur to pay public levies or social security or health insurance contributions in their individual case. Interpretations issued on the basis of the above provision do not concern individual tax law interpretations, which are issued under the existing rules on the basis of the provisions of the Act of 29 August 1997 – Tax Ordinance (Journal of Laws of 2021, item 1540, as amended).
Procedure for obtaining individual interpretations under the Entrepreneurs’ Law
As a general rule, the provisions of the Code of Administrative Procedure apply to proceedings for the issuance of individual interpretations under the Business Law. Unlike tax interpretations, interpretations issued under the provisions of the Business Law are issued in the form of a decision, against which an appeal may be lodged. This means that, unlike in tax matters, an appeal against the decision must first be lodged with the appeal authority, and subsequently, if necessary, a complaint must be lodged with the Provincial Administrative Court. The interpretation is issued by the authority competent to issue interpretations or the competent state organisational unit at the request of the entrepreneur.
The competent authority should issue the interpretation without undue delay, but no later than within 30 days of receiving the request for an individual interpretation. As provided for in paragraph 12 of the aforementioned provision, if an individual interpretation is not issued within the time limit, it is deemed that on the day following the expiry of the time limit for issuing the individual interpretation, an individual interpretation was issued confirming the correctness of the entrepreneur’s position as set out in the application.
The individual interpretation issued shall contain a comprehensive description of the facts or future event presented in the application, an indication of the correct position together with a legal justification, and information on the right to lodge an appeal.
Elements of an application for an individual interpretation
Under the provisions of the Entrepreneurs Act, an entrepreneur’s application for an individual interpretation must set out the existing facts or future event and their own position on the matter, as well as their business name, tax identification number (NIP), and correspondence address, where this differs from the address of the registered office or the entrepreneur’s place of residence.
An application for an individual interpretation is subject to a fee of PLN 40. The fee must be paid within 7 days of the date of submission of the application. If the application for an individual interpretation does not meet the requirements set out in the Act, the authority shall request the entrepreneur to rectify the deficiencies within 7 days, with the instruction that failure to do so will result in the application being left unexamined. The decision to leave the application unexamined is issued in the form of a ruling, against which an appeal may be lodged.
The payment of the application fee may give rise to some doubts. As indicated above, an application for an individual interpretation is subject to a fee of PLN 40; however, this applies to an application requesting an individual interpretation regarding a single factual situation or a single future event. Where a single application for an individual interpretation covers separate factual situations or future events**, a fee is charged for each separate factual situation or future event presented in the application**.
The significance of individual interpretations for entrepreneurs and authorities, and their consequences
Article 35(1) and (2) of the Entrepreneurs Act sets out the various legal effects of an individual interpretation issued at the request of an entrepreneur, introducing separate provisions for the entrepreneur and the administrative authority. First and foremost, it should be emphasised that an individual interpretation is, in principle, not binding on the entrepreneur. This means that the entrepreneur is not obliged to act in accordance with any suggestions made by the authority. However, if the entrepreneur takes actions contrary to the content of the individual interpretation and thereby breaches other legal provisions, this may result in negative consequences for them. However, actions contrary to the interpretation alone cannot be the sole cause of such consequences. At the same time, to the extent that the entrepreneur has acted in accordance with the content of the individual interpretation obtained, the entrepreneur may not be subject to administrative or financial sanctions, penalties or levies in an amount higher than that resulting from the individual interpretation obtained.
An individual interpretation has entirely different consequences for the relevant authorities or state bodies dealing with the entrepreneur’s affairs. These entities are, in fact, bound by the content of the interpretation issued and may amend it, but only by reopening proceedings. This means that it is impossible – from the authorities’ perspective – to amend the interpretation and free the authority from the binding effect of a previously issued interpretation if irreversible legal consequences have arisen as a result of its issuance.
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This article addresses the issue of individual interpretations, as regulated under business law. Although the term itself is often associated with tax law, individual interpretations also play an important role in business law.
Individual interpretations are a key tool for entrepreneurs in understanding and applying the law in specific situations. They provide the opportunity to obtain an official position on legal matters, thereby reducing uncertainty and legal risk. However, it is worth noting that such an interpretation is not binding on the entrepreneur and cannot be the sole basis for any legal consequences. On the other hand, state authorities are obliged to comply with the interpretations issued, unless proceedings are reopened. This highlights the importance of individual interpretations as a means of balancing the needs of businesses with the state’s legal requirements.
She specializes in civil, commercial and business law. In the corporate and energy department, her activities are mainly based on providing corporate services to companies, reviewing and preparing commercial contracts, drafting litigation and non-litigation pleadings and preparing analyses and legal opinions, particularly in the sphere of business law and energy law. She also has professional experience in administrative and civil proceedings, which she gained in Warsaw law firms. She supports the Firm's…
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