Parcel lockers: No building permit required, but subject to real estate tax?
The pandemic has affected the way we shop. More and more frequently, buyers order products (including Christmas gifts) online with delivery to a designated customer service location or a parcel locker, so they don’t have to wait at home in the time slots indicated by the courier. More parcel lockers are appearing in housing estates and on the street. While it is clear that constructing parcel lockers does not require a building permit, are parcel lockers subject to real estate tax?
By the end of last year, it was clear that businesses in Poland did not have to obtain building permits to construct new parcel lockers. But this year operators are facing efforts by municipalities to charge real estate tax on parcel lockers.
Construction of parcel lockers no longer requires notification or a building permit
Until September 2020, parcel lockers were regarded by both administrative authorities and administrative courts as a “structure” (obiekt budowlany) within the meaning of Art. 3 of the Construction Law (e.g. judgments of the province administrative court in Rzeszów of 11 March 2021, case no. II SA/Rz 847/20; Łódź, 17 January 2019, II SA/Łd 761/18; and Warsaw, 26 September 2018, VII SA/Wa 2892/17). However, the divergence in the case law concerned whether a parcel locker should be treated as a “construction” (budowla) within the meaning of Art. 3(3) of the Construction Law or a “temporary structure” (tymczasowy obiekt budowlany) under Art. 3(5).
Classification of parcel lockers as structures led to the conclusion that they are subject to the Construction Law, in particular, the requirement to obtain a building permit. It was recognised that a parcel locker, as a structure, is made by construction within the meaning of Art. 3(6) of the Construction Law, and construction consists in carrying out building works defined in Art. 3(7) of the Construction Law. In turn, pursuant to Art. 28(1), construction works may be commenced only on the basis of a decision granting a building permit (subject to Art. 29–31, which provides for exceptions to this rule).
The Act of 13 February 2020 Amending the Construction Law and Certain Other Acts amended Art. 29 of the Construction Law by revising the catalogue of objects requiring neither a building permit nor notification under Art. 30 of the Construction Law. The amending act came into force on 19 September 2020. Pursuant to the amended Art. 29(2)(28) of the Construction Law, neither notification nor a building permit decision is required for, among other things, machines storing parcels, provided that they do not exceed three metres in height.
Will operators pay another tax on parcel lockers?
However, the jurisprudence and the amendment to the Construction Law described above have caused discrepancies as to whether parcel lockers are subject to real estate tax under the Taxes and Local Fees Act.
According to Art. 2(1) of the Taxes and Local Fees Act, land, buildings or parts thereof as well as constructions or parts thereof related to running a business are subject to real estate tax. The act defines buildings, constructions and land, and buildings and constructions related to running a business, in Art. 1a(1)(1)–(3). Both of these definitions cross-reference the concept of a “structure” (obiekt budowlany) within the meaning of the Construction Law. A structure is defined in Art. 3(1) of the Construction Law as “a building, construction, or small architectural object, including installations ensuring usability of the object for its intended purpose, erected using construction products.”
Therefore, the question is whether a parcel locker is a “structure” (especially a construction, not a building) within the meaning of the Construction Law, and whether, as such, it is subject to real estate tax.
Based on the judgment of the Constitutional Tribunal of 13 September 2011 (case no. P 33/09), the legal literature indicates that a construction is subject to real estate tax if it is explicitly indicated in Art. 3(3) of the Construction Law (defining the concept of a construction), other provisions of that law, or the appendix to that law (R. Dowgier et al., Taxes and local fees: Commentary (Lex 2021), commentary to Art. 1a of the Taxes and Local Fees Act). As these commentators write, since parcel lockers are expressly mentioned in Art. 29(2)(28) of the Construction Law, they may taxed under the Taxes and Local Fees Act: “So, are the popular parcel lockers structures within the meaning of the Construction Law? The answer to this question is in the affirmative.” They also point to other arguments in support of this view. But they do note that in the literature, there are divergences on whether parcel lockers can be subject to real estate tax (citing A. Kałążny, “Should real estate tax be paid for equipment such as parcel lockers that are not structures?” Przegląd Podatków Lokalnych i Finansów Samorządowych 2021 no. 5).
But according to other authors, the notion of a “construction” within the meaning of Art. 3(3) of the Construction Law should not be interpreted broadly: “It is not possible to establish without dispute the meaning of the term ‘construction as used in the act. Thus any attempt at a broader interpretation of the term must be opposed, especially since what we consider to be a construction directly determines the subject of taxation itself, i.e. one of the most important elements in establishing any tax. Such essential grounds for taxation must not be left uncertain, but should be clearly identifiable based on the express wording of the law” (W. Modzelewski et al., Taxes and Local Fees Act: Commentary (10th ed., Legalis 2021), commentary on Art. 2).
Therefore, currently, the issue of taxation of parcel lockers remains unresolved, and opposing views are stated. In particular, it may be interpreted differently depending on the place where the parcel locker is erected, as pursuant to Art. 1c of the Taxes and Local Fees Act, the head of the local municipality is the competent tax authority in the case of real estate tax. Still, owners can appeal against property tax assessments to the local government appeal board, and subsequently seek review by the administrative courts.
Thus everything seems to indicate that if the issue of taxation of parcel lockers is not resolved unequivocally by lawmakers, taxpayers will have to wait for a dominant line of case law to be established.
Joanna Duda, Dispute Resolution & Arbitration practice, Wardyński & Partners
