The Supreme Administrative Court (hereinafter: NSA), in its judgment of 26.10.2023, ref. I FSK 299/21, confirmed that the temporary registration of a passenger car in Poland at the owner’s request in order to move it outside the country is not an obstacle to obtaining an excise duty refund in Poland. Thus, this judgment broke the hitherto well-established line of case-law according to which any registration of a car, whether permanent or temporary, excludes the possibility of an excise duty refund (see, e.g., NSA judgments of: 25.02.2015, file ref. I GSK 2036/13; 22.08.2016, file ref. I GSK 799/15; 22.09.2016, file ref. I GSK 896/15; 22.11.2017, file ref. I GSK 1129/16; 5.10.2017, file ref. I GSK 2210/15; 24.07.2019 file ref. I GSK 109/17).

Substance of the dispute

Pursuant to Article 107(1) of the Excise Duty Act (hereinafter referred to as the A.p.a. ), an entity which acquired the right to dispose as owner of a passenger car not previously registered on the territory of the country in accordance with the provisions on road traffic, on which excise duty was paid on the territory of the country, making an intra-Community supply or export of this passenger car, or if this supply or export is made on its behalf, is entitled to reimbursement of excise duty upon request submitted to the competent head of the tax office within a year from the date of making the intra-Community supply or export of this passenger car.

The sticking point in the case at hand was the prerequisite for the registration of the car mentioned in the provision. A taxpayer – a trader importing cars to Poland – applied to the head of the tax office in Poland for reimbursement of excise duty on account of a car exported to Norway (the car was registered in Poland). Both the tax authorities and the court of first instance refused him the right to reimbursement of excise duty, citing the lack of fulfilment of the statutory condition concerning registration in Poland. The case was filed to the NSA.

The position of the NSA

The NSA agreed with the taxpayer. It confirmed that the temporary registration of a passenger car in order to admit it to road traffic temporarily, for a specific period of time, necessary to perform registration activities (ex officio temporary registration) is not the same as the temporary registration of a car at the owner’s request in order to move it out of the country (export of the vehicle out of the country).

Confirmation of the above interpretation can be found in the CJEU judgment of 17 May 2023 in case C-105/22, in which the Court stated that the excise duty on passenger cars referred to in the Excise Duty Act is not in the nature of a tax linked to their consumption, which materialises through the registration of the passenger car in question on the national territory, but in this respect the ex officio temporary registration of the vehicle must be distinguished in particular from the temporary registration made for the purpose of enabling the export of that vehicle abroad.

This statement of the CJEU unequivocally demonstrates the need to differentiate the effects, in the application of Article 107 of the A.P.A., of the registration of cars with a view to their permanent entry into service in the national territory, from the temporary registration carried out in order to allow the car to be moved out of the country.

The temporary registration of the taxpayer’s vehicle was made for the purpose of exporting this car from the national territory and, significantly, this export was made within 30 days of this registration, i.e. within the time provided for temporary registration (cf. Article 74(3) of the Road Traffic Law), which in the present case prejudges its nature.

Summary

The above judgment breaks the previous line of rulings, according to which any registration of a car in Poland closed the way to reimbursement of excise duty for exported cars. The provision of Article 107(1) of the a.p.a. should be interpreted to mean that the temporary registration of a passenger car at the owner’s request in order to move it out of the country (exporting the vehicle abroad), pursuant to Article 74(2)(2)(a) of the Act of 20 June 1997. – Road Traffic Law does not constitute an obstacle to the reimbursement of excise duty under this provision. Our consultants will be happy to assist you in this respect. You are welcome to contact us.