Is it possible to effectively submit a power of attorney for the files of a given tax case before it has been officially initiated?

Is a power of attorney submitted for the files of a tax case that (as it later turns out) was not properly initiated (in fact, was not initiated at all) considered valid, and does it constitute authorization to represent the principal in subsequent properly initiated tax proceedings?

These seemingly trivial questions were the subject of deliberations by the Voivodeship Administrative Court (WSA) and the Supreme Administrative Court (NSA) in the case of our client.

According to the Voivodeship Administrative Court, such a power of attorney may constitute valid authorization, even if it is submitted to the files of a case in which the proceedings were not properly initiated (i.e., were not initiated at all).

However, the NSA, when overturning the WSA judgment we appealed against, disagreed with this position, raising doubts about whether, in the specific case, there was one proceeding (the same?) or perhaps two (or more?) proceedings. Alternatively, were these separate stages of a single proceeding?

The NSA also questioned whether it was clear how many files existed—was there just one file for all proceedings, or were there more?

Thus, according to the NSA, it was uncertain to which files and proceedings the power of attorney had been submitted.

When re-examining the case, a different panel of the Voivodeship Administrative Court rightly found (confirming our position) that the tax authority was correct in stating that, if an attorney had been appointed in the case, documents should be served to that attorney. However, we can only speak of any proceedings (case) once those proceedings have been initiated.

The Voivodeship Administrative Court also rightly confirmed that it is impossible to submit a power of attorney for a case that does not yet exist.

The misunderstanding arose because the authority failed to distinguish between a special power of attorney and a general power of attorney as defined by the provisions of the Tax Ordinance.

Due to the manner in which the attorney’s competences were described in the power of attorney, the authority concluded that it was a power of attorney of a “general nature.”

However, as the WSA rightly confirmed when re-examining the case, the Tax Ordinance distinguishes only two types of powers of attorney: general and special. There is no such thing as a power of attorney “of a general nature.”

As rightly indicated in the resolution of the Supreme Administrative Court (ref. II FPS 1/22), in order to produce a procedural effect, it is necessary to: (1) submit a special power of attorney, (2) include it in the case files, (3) in specific proceedings, (4) conducted before a tax authority, as outlined in Art. 138e § 3 of the Tax Ordinance.

The above shows once again that any changes to the regulations pose a challenge not only for taxpayers but also for the authorities themselves, who must correctly understand and apply these regulations.

Bernard Łukomski
attorney-at law