Transmission easement - taxation in 2015

In the new year, we can expect amendments to the Income Tax Acts. There will be legal modifications that will give taxpayers the opportunity to reduce the fiscal burden. The draft includes the assumption that the transmission easement and the revenues obtained thanks to it will be exempt from taxation.

Transmission easement - definition

Transmission easement has its legal basis in the Civil Code. It belongs to the category of so-called limited property rights - this group also includes a pledge, mortgage and cooperative ownership right to the premises.

Art. 3051 of the Civil Code "The property may be encumbered in favor of the entrepreneur who intends to build or whose property is the equipment referred to in Article 49 § 1, with the right that the entrepreneur may use the encumbered property to a certain extent, in accordance with the purpose of these equipment (easement transmission). " Art. 49 § 1 of the Civil Code "Devices for supplying or draining liquids, steam, gas, electricity and other similar devices are not part of the real estate if they are part of the enterprise."

The content of this provision is the behavior of the property owner consisting in the removal of already built devices or those that are yet to be built in the area of ​​his property. It should be noted that the transmission easement may be payable.

If the owner of the property does not agree to the transmission easement confirmed by the contract, then the owner (present or future) of the equipment has the right to apply to the court for its establishment against remuneration. It can do the same if the transmission operator refuses to pay.

Transmission easement - currently taxed

As for how the transmission easement is to be taxed, one can see a heterogeneous line of jurisprudence and interpretation. Some authorities are of the opinion that property owners receive fees that should not be subject to tax. Most of them emphasize that the transmission easement is not exempt from taxation like land easement, therefore the revenues from this source must form the basis for PIT. Such an opinion was expressed by the Director of the Tax Chamber in Poznań in the individual ruling of April 1, 2014, file ref. ILPB2 / 415-22 / 14/4 / ES.

The PIT Act, Art. 21 sec. 1 Income tax free are compensations paid, on the basis of court judgments and concluded agreements (settlements), to owners of land included in a farm, for: a) establishing a land easement, b) land reclamation, c) damage to agricultural crops and forest stands - as a result of investment in the construction of crude oil transmission infrastructure and refined petroleum products and the construction of technical infrastructure facilities referred to in Art. 143 paragraph 2 of the Act of August 21, 1997 on real estate management (Journal of Laws of 2010, No. 102, item 651, as amended)

Compensation for the establishment of a transmission easement is not tax-exempt, therefore it is usually classified as income from other sources. But there are other opinions in the jurisprudence of administrative courts, according to which the transmission easement is covered by the tax exemption in question - as in

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the judgment of the Supreme Administrative Court of June 1, 2011, file ref. II FSK 88/10. This approach was criticized by the tax authorities, which emphasized that land easement is a separate entity, independent of transmission or personal easement.

The principle of expressio unius est exclusio alterius was referred to here - the inclusion of one is the exclusion of something else. This means that if a legal act lists specific elements of the set, the scope of the standard should not include the elements that are not included.

Transmission easement - changes in taxation

The planned amendment assumes that the remuneration of the property owner for the establishment of transmission easement will be exempt from PIT and CIT. The jurisprudence shows that such remuneration is compensatory in nature - it does not have the characteristics of an obligation between the creditor and the debtor. This is the main premise for an amendment to the law in this area.

Although the group of recipients of the discussed tax relief will be small, the tax exemption of transmission easement appears to be a change for the better. It remains to wait for the finished draft - and keep our fingers crossed for the precise provisions to reduce the interpretation controversy on this subject. According to the plan, the amendment is to take effect from the New Year 2015.