WAWERSKI v. POLAND

Published on 22 September 2025

FIRST SECTION

Application no. 18116/20
Jarosław WAWERSKI
against Poland
lodged on 27 April 2020
communicated on 2 September 2025

SUBJECT MATTER OF THE CASE

The application concerns a tax audit and the subsequent, allegedly defective, administrative court proceedings, which resulted in the applicant being required to pay the equivalent of over 5,200,000 euros (EUR) in personal income tax on a donation. The donation formed part of what the applicant described as a wealth management strategy, but which the authorities regarded as intended solely for tax avoidance – despite the fact that, at the relevant time, domestic law did not contain a general anti-avoidance rule.

The applicant owned shares in Emperia Holding S.A. (a joint stock company registered in Poland) and planned to donate them to another entity as part of a purported wealth management strategy. In 2012, he obtained an individual tax interpretation (interpretacja indywidualna) from the Minister of Finance confirming that, if he fully disclosed all details, the donation would be tax-exempt.

Later in 2012, the shares were donated to a closed-ended investment fund indirectly controlled by the applicant via a Cypriot company. In the same year, Emperia Holding S.A. paid dividends to the investment fund which passed the proceeds to the Cypriot company. The company then distributed the profits to the applicant who was not subject to tax on those funds.

In 2015 the tax authorities opened an audit into the applicant’s 2012 personal income tax declaration.

In 2017 the tax authorities established the applicant’s tax liability for the transfer of shares at 22,041,408 Polish zlotys (approximately EUR 5,200,000), based on the finding that the donation was an apparent legal transaction (pozorna czynność prawna) from which the applicant derived benefit in the form of exemption from tax on dividends. Following the applicant’s appeal the tax authorities upheld the decision at second instance.

The applicant lodged an appeal with the Lublin Regional Administrative Court which, in a judgment in 2018, quashed the second instance decision and remitted the case for review.

The court agreed with the applicant that the tax authorities had failed to establish the actual legal transaction carried out under the guise of the donation (a prerequisite for contesting legal transactions as “apparent”) and ordered that the evidentiary proceedings be supplemented in this regard. It further held that, in the absence of such additional considerations, the authorities could not impose tax on the donation, as domestic law at the relevant time did not contain a general anti-avoidance rule that would permit the challenge of otherwise valid transactions. The court also acknowledged that the applicant’s appeal relied heavily on the individual tax interpretation but found it premature to assess these arguments before the authorities had provided additional factual considerations.

In 2019, in response to the tax authorities’ cassation appeal, the Supreme Administrative Court (SAC) quashed the first-instance judgment and dismissed the applicant’s appeal against the second-instance decision, thereby terminating the proceedings.

The SAC considered that there was no need to supplement the evidence. It further held that, despite the lack of an explicit complaint to that effect, the tax authorities had, in essence, contested the lower court’s interpretation of substantive law concerning apparent legal transactions. On that basis, satisfied that there was no need for a general anti-avoidance clause and the provisions on apparent legal transactions were sufficient to challenge the transaction, the SAC reclassified the donation as a disguised paid transfer of shares, with the price having been paid by a third party – the Cypriot company.

The applicant’s arguments concerning (i) the individual tax interpretation and (ii) the outcome of proceedings involving his co-shareholder, who had employed an essentially identical scheme but, following a comparable judgment by the Regional Administrative Court, had his tax audit discontinued – were not addressed in the written reasons of the SAC judgment.

The applicant paid the personal income tax as established in the final decision.

Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complains that the imposition of personal income tax on the donation was unlawful, arbitrary and unforeseeable, in so far as (i) the domestic law did not contain a general anti-avoidance rule at the time and the Supreme Administrative Court departed from otherwise well-established case-law according to which the provisions on apparent legal transactions could not serve as basis for challenging tax optimisation schemes, and (ii) before the donation the applicant had obtained an individual tax interpretation from the Minister of Finance stating that the transaction would be tax-exempt.

Under the same provision, the applicant further complains that the administrative court proceedings did not afford him a reasonable opportunity of effectively challenging the imposition of tax. He relies on the following allegations:

(a)  the domestic courts failed to examine his arguments concerning the protection stemming from the individual tax interpretation and the existence of a final and significantly different outcome of the tax audit in the case of his co-shareholder, who had allegedly used an essentially identical scheme;

(b)  the Supreme Administrative Court, in deviation from its well-established case-law on cassation appeals, recharacterised complaints raised by the tax authorities and issued a reformatory second-instance judgment.

QUESTIONS TO THE PARTIES

1.  Has there been an interference with the applicant’s right to peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention?

2.  If so, was the interference in accordance with the principle of lawfulness, within the meaning of the provision? In particular, was the duty imposed on the applicant sufficiently foreseeable in the light of (i) the individual tax interpretation obtained by the applicant, (ii) the absence of a general anti-avoidance rule at the relevant time, and (iii) the domestic legislation and case-law concerning tax consequences of apparent legal transactions?

3.  Was the interference proportionate to the aim pursued, within the meaning of the provision? In particular:

(a)  Did the applicant have the possibility of effectively challenging the imposition of personal income tax? Notably, reference is made to the applicant’s allegations that the Supreme Administrative Court recharacterised the complaints raised by the tax authorities and issued an unexpected reformatory judgment.

(b)  Have the domestic courts carefully examined major arguments advanced by the applicant, notably as regards the protection stemming from the individual interpretation and the outcome of the proceedings concerning his co-shareholder?