Przegląd Ustawodawstwa Gospodarczego Nr 11/2009

W numerze:

Aleksander Lipiński

Czy art. 2 ust. 1 pkt 3 ustawy z dnia 12 stycznia 1991 r. o podatkach i opłatach lokalnych odpowiada standardom konstytucyjnym?

Does art. 2. 2. 3 of Local Taxes and Charges Act meet Constitutional standards?
The Constitution of Poland provides that imposition of taxes (the specification of the object, those subject to the tax and the rates of taxation) shall be only by the act of Parliament. It means that all the elements of tax-law relation shall be regulated clearly by acts of Parliament. These standards are not met by some provisions of Local Taxes and Charges Act of 12 January 1991. These provisions defines "building" as the object to the tax by referring to a definition in building law. The latter definition has an exemplary character that does not help in determining the object to the tax. It also means that such construction is not in accordance with the Constitution. Thus it was right, as one of administrative courts did, to approach the Constitutional Tribunal requesting the examination of conformity of Local Taxes and Charges Act to art. 217 of the Constitution.

Jan Błeszyński

Reemisja w świetle art. 21(1) Prawa autorskiego
Leonard Etel

Mariusz Popławski

Interpretacja przepisów prawa daninowego w świetle ustawy o swobodzie gospodarczej i ustawy - Ordynacja podatkowa

Individual interpretation in the Act on Freedom of Economic Activity and in comparison to the Act on Tax Ordinance
The regulations concerning individual interpretations are different in the Act of 2nd July 2004 on Freedom of Economic Activity in comparison to the Act of 29th August on Tax Ordinance. First of all the difference refers to the time-limit for issuing such interpretation, then the legal form of those decisions and the rule of not injuring the subject who obtained the interpretation. The analysis of regulations concerning the objective matter lead to the conclusion that special doubts refer to the scope of applying the Act on Freedom of Economic Activity and the Act on Tax Ordinance within the interpretation of the compulsory public levies. It is caused by the lack of legal definition of the compulsory public levy notion in the Act on Freedom of Economic Activity, and such term is used for example in article 10 of that Act. Consequently there are difficulties in indicating dues applied by the Act on Tax Ordinance. In effect, the entrepreneur submitting a motion for interpretation should first assign the character of the public compulsory levy. It indicates the proper authority for issuing interpretation concerning particular due. However, it is clearly marked for instance that with regards to interpretation, the Act on Freedom of Economic Activity applies to social insurance and health care fees. This should be positively evaluated. Troubles can also appear with the adaptation of not injuring rule, especially on the ground of the Act on Tax Ordinance with respect to local taxes.

Wojciech Stachurski

Nowe zasady kontroli działalności gospodarczej przedsiębiorców

New control rules of economic activity for entrepreneur
New control rules of economic activity for entrepreneur, which took effect on 7th of March 2009, were aimed to put in order all system of entrepreneur control, including easing difficulties of these controls. The changes have diverse purposes ; some of them introduce new process institutions, others modify solutions that have to date been applied while others define unclear law provisions. A clear consensus of the ratings of this new control system has not been achieved. On one hand Lawmaker introduced demand regarding control difficulties and from this he implemented a number of legal provisions to the legal relations which entitle entrepreneur to better legal protection compared to one they had previously. On the other hand he made this in the way that excludes the possibility to achieve a second postulate which is put a conduct of control affairs in order. Most of the changes bring a serious interpretation doubts and it must be assumed that in practice new solutions will cause many troubles not only for supervision bodies but for entrepreneur as well. Moreover some of the changes, for example the time of control, do not in actuality limit the difficulties of control. Some reservations can be found in the range of legal guarantees given to entrepreneur. In particular remedies are out of proportion to the result, such as legal protection given to businessmen in the form of objection against some controlled activities, which can be raised and considered. Another problem applies to fact how the right of objection assigned to entrepreneur can be reconciled with constitutional rule of equality before the law.

Konsultacje

Grażyna Cern "Złota akcja" a zasada równego traktowania akcjonariuszy w spółce akcyjnej

'Golden Share' vs. the principle of equal treatment of shareholders in a joint stock company
The principle of equal treatment of shareholders in a joint stock company is a normative principle given in Article 20 of the Code of Commercial Companies. According to this provision, shareholders or stockholders of a capital company should be treated equally in the same conditions. It is noteworthy, however, that this principle does not exclude preferences for certain shareholders or granting individual rights to some of them. Nevertheless, every departure from the above principle should take place within the limits set by the Code of Commercial Companies. The normative source of the equal treatment principle is also the Second Council Directive No. 77/91/EEC of 13 December 1976. According to Article 42, member states guarantee the equal treatment of shareholders who are in the same position. The term 'a golden share' is considered in the Polish law as a conceptual category within stock preferences. As mentioned above, the principle of equal treatment of shareholders prohibits the unequal treatment of shareholders who are in a similar situation. Nevertheless, if there are any significant circumstances in favour of a preference, the departure from the above principle is acceptable. In this article an attempt has been made to answer the question if any preferences of shareholders (partners) in a capital company, especially by granting them a 'golden share', violate the principle of equal treatment of shareholders (partners) and if granting such a share to the Treasury does not result in the excessive interference of the State in the management and decision-taking process in private companies?

List otwarty w sprawie erygowania Instytutu Allerhanda