Suspension of procedural deadlines during the COVID-19 pandemic

Based on statutory amendments of 31 March 2020, the procedural time limits, including court time limits, in pending cases have been suspended and no new periods will start running during the state of epidemic emergency and the state of epidemic declared in response to the COVID-19 pandemic. This will apply to certain matters, such as tax inspections, tax and customs inspections, tax investigations and administrative court proceedings. During the state of epidemic, the start of time limits in certain types of proceedings was postponed or, if a time limit had started before the epidemic, it was suspended.

The provisions mentioned above were repealed by the Anti-Crisis Shield 3.0 Act of 16 May 2020. The time limits suspended under the COVID-19 Act were resumed and those the start of which was postponed under that Act were started after seven days from the coming into force of Shield 3.0.

However, not all administrative proceedings were stopped by the Anti-Crisis Shield 3.0 Act. Although procedural time limits were suspended, tax inspections, tax and customs inspections and tax investigations continue, and the practical implementation of measures provided for in the COVID-19 Act raised many doubts. 

Under s.15zzs of the COVID-19 Act, the procedural time limits that had started before that Act came into force were suspended during the epidemic. This applied, in particular, to matters dealt with on a tacit acceptance basis (i.e. if an application is not replied to by an authority, the authority is deemed to have accepted the application), other matters where no reply from the authority dealing with a matter means that the applicant has the right to act, as well as to time limits within which an authority is required to give an opinion or to issue an individual tax interpretation. The suspension of time limits applied, in principle, to time limits within which an authority is required to give an opinion or to issue an individual tax interpretation.

However, the COVID-19 Act specified the types of decisions or determinations permitted during the suspension period. They included, in particular, decisions in matters where an application or a claim is accepted in its entirety as well as matters where an authority is required to give an opinion or to issue an individual tax interpretation. Additionally, protective measures included the right of an authority to require a taxpayer to act in a certain way within a specified time period. This applied, in particular, to matters where the exercise of that right was justified by public interest, an applicant's valid interest or the valid interest of a person subject to inspection.

It is important to note that the fact the procedural time limits in pending cases were suspended or the start of time limits new cases was postponed did not mean that any pending cases were suspended. The relevant regulations made it clear that it was only procedural time limits that were suspended, not the proceedings to which the time limits were related. The provisions of the COVID-19 Act allowed the authorities and the applicants to proceed with pending cases.

The above was reflected in the practices adopted by tax authorities, which included contacting taxpayers directly by means of electronic communications, such as e-mail. In practical terms, tax authority asked taxpayers for additional documentary evidence or explanations, including in the form of official letters requiring them to do so within a time limit of several days (although such time limits should never have started under the then applicable regulations). In such situations, taxpayers were entitled (but not required) to provide such evidence or explanations.

At the same time, it is essential to note that the suspension of procedural time limits under the COVID-19 Act raises many practical questions. Firstly, it needs to be noted that a public administration authority must enable all the parties to an administrative procedure to respond to the evidence and other materials in their matter and to any requests made by the authority. This was not possible during the suspension of procedural time limits, which may indicate that any decision issued during the suspension period might be challenged for formal reasons in the future. It is also important to note that suspended time limits included periods of several years. It follows that it will be necessary to add an appropriate number of days to the time period in the future.  

Doubts have emerged over the start date of the suspension period.

The state of epidemic emergency was declared in Poland on 14 March 2020 and has continued ever since. The provisions that suspended procedural time limits did not come into force until 31 March 2020. As no temporary provisions were passed that would have given a retrospective effect to the provision of s.15zzs(1)(1) of the COVID-19 Act, that provision applies only to time limits that had already started when the provision came into force (suspension of time limits) and time limits that had not started before the coming into force of the provision (the start of such time limits was postponed). It is perhaps worth taking a cautious approach by considering the 31 March 2020 as the first day of the suspension period, although there are arguments to support the claim that the suspension period started on 14 March, i.e. on the first day of the state of epidemic emergency declared in Poland, during which procedural time limits were either suspended (if they had already started) or did not start under the COVID-19 Act.

It needs to be noted, however, that many time limits will start anew. The time limits suspended under the COVID-19 Act were resumed, and those that had not started under that Act were started seven days after Shield 3.0 came into force. However, the full time limit plus seven days will be granted to a taxpayer if the time limit in his matter has not started at all because it was immediately suspended. It follows that if a taxpayer had, for example, two days within which to file an appeal before the suspension, then the time limit under the provisions of Shield 3.0 will be seven days plus two days.

As the Anti-Crisis Shield 3.0 Act came into force on 16 May 2020, procedural time limits were resumed or started on Sunday, 23 May 2020. Some legal writers disagree and argue that the correct date is either 22 May or 24 May. However, we do not think that there is any basis for such dates in the provisions of the Shield 3.0 Act.

Kamil Pierścionek,
Manager in the Tax Litigation Team at KPMG in Poland

Ilona Augustyniak,
Senior Consultant in the Tax Litigation Team at KPMG in Poland