FIRST SECTION

DECISION

Application no. 13402/19 Piotr NAGÓRNY against Poland

The European Court of Human Rights (First Section), sitting on 30 January 2024 as a Committee composed of:

Ivana Jelić , President , Krzysztof Wojtyczek, Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 13402/19) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 February 2019 by a Polish national, Mr Piotr Nagórny (“the applicant”), who was born in 1981, lives in Wiewiórczyn and was represented by Mr B. Rodak, a lawyer practising in Łódź;

the decision to give notice of the complaint under Article 1 of Protocol No. 1 to the Convention, concerning the refusal to reimburse overpaid tax contributions, to the Polish Government (“the Government”), represented by their Agent, Mr. J. Sobczak of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;

the Government’s observations;

the decision to reject the applicant’s belated observations, pursuant to Rule 38 § 1 of the Rules of Court;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the refusal of the tax authorities to reimburse certain income tax paid by the applicant in relation to additional remuneration received as a soldier.

2. The applicant is a professional soldier in the Polish Army. Between 2005 and 2008 he was seconded to serve in a NATO command in the Netherlands.

3. Due to his service abroad, in addition to his regular remuneration ( uposażenie ) in Polish zloty (PLN), he was entitled to an additional monthly foreign supplement ( należność zagraniczna ) which was paid in euros (EUR). Both were subject to taxation in Poland.

4. The applicant had doubts as to whether the taxation of the foreign supplement had been compliant with the law and, on 13 September 2007, applied to the Minister of Finance ( Minister Finansów ) for an individual interpretation of the tax law.

5 . On 12 December 2007 the Director of the Warsaw Tax Chamber ( Dyrektor Izby Skarbowej ), acting under the authority of the Minister of Finance, issued an interpretation which stated that the foreign supplement was subject to taxation. The applicant did not appeal against that decision and paid his personal income tax contributions for the years 2005-2008. He included the foreign supplement as a basis for taxation.

6. On 11 December 2013 the Minister of Finance, acting proprio motu , issued a decision in which he changed his interpretation included in the decision of 12 December 2007. The Minister held that the foreign supplement should be exempt from personal income tax. The decision was served on the applicant in early 2014.

7 . On an unspecified date thereafter, in view of the above decision, the applicant was reimbursed personal income tax paid for 2008.

8. However, he was refused the reimbursement of personal income tax contributions paid for the years 2005-2007 due to the expiry of the limitation period.

9. The applicant initiated civil proceedings claiming the amount of overpaid tax in compensation. The court rejected his claim and held that he should have had recourse to administrative proceedings if he wanted to challenge an unfavourable tax decision.

10 . In 2015 the applicant requested the competent tax office to determine an overpayment of personal income tax for the years 2005-2007.

11. The authorities refused to initiate tax proceedings pursuant to the applicant’s request, having determined that tax obligations for each of these years had become time-barred at the end of years 2011-2013 respectively. The applicant appealed.

12 . The proceedings ended on 29 August 2018 when the Supreme Administrative Court dismissed the applicant’s cassation appeal, having found no reasons to depart from the finding that the applicant’s claims had become time-barred.

13. The applicant complained of being unable to obtain reimbursement of overpaid personal income tax contributions. He relied on Article 6 § 1, read in conjunction with Article 13 of the Convention.

THE COURT’S ASSESSMENT

14. The Court being the master of the characterisation to be given in law to the facts of the case considers that the applicant’s complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018).

15. The Government submitted that the applicant had failed to exhaust all available remedies provided for by Polish law. In particular, they noted that he did not appeal against the decision of 12 December 2007 (see paragraph 5 above).

16. The Court notes that it was the decision of 12 December 2007 which contained an individual interpretation that the foreign supplement was subject to personal income tax and that, at the relevant time, the applicant accepted the interpretation, paid the tax and did not appeal against the decision even though it contained clear instructions on the possibility of lodging an appeal.

17. The applicant failed to put forward any reasons for his omission in this respect. Moreover, the applicant, represented by a lawyer of his choosing, did not submit within the allocated time-limit any observations on the admissibility and merits of the application and did not comment on the Government’s submissions.

18. In such circumstances, the Court considers that the matter of the applicant’s tax liability for the years 2005-2007 was decided in the decision of 12 December 2007 and that by failing to appeal against it he deprived the domestic courts of the possibility to rule on the validity of the tax authorities’ original interpretation. The Court concludes that the applicant did not do everything that could have been reasonably expected of him to exhaust domestic remedies ( D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 116, ECHR 2007-IV).

19. The Government’s objection must therefore be allowed and this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

20. The Court finally notes that the applicant also contested the outcome of the subsequent proceedings, initiated in 2015, in which he sought reimbursement of the tax paid for the years 2005-2007 (see paragraphs 10-12 above). In this respect, given that (i) the applicant’s claims had unequivocally become time-barred before he lodged his reimbursement requests and that (ii) the existence of a statutory limitation period per se is not incompatible with the Convention or the Protocols thereto (see Skenderi and Others v. Serbia (dec.), no. 15090/08, § 97, 4 July 2017, with further references), there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

21. Accordingly, the remainder of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 February 2024.

Liv Tigerstedt Ivana Jelić Deputy Registrar President