The taxation structure associated with wind farms

If a property, which is erected with the buildings for wind turbines (the foundations, masts, street and square paving, outer wall, fencing, pipelines), is owned by farmers, and this land was leased for 25 years by the wind farm developer, the parties that pay tax on the land are the owners of the structures, while tax liability cannot be transferred to another party contractually. This results from the reply to parliamentary question no. 31489/2015 by the Undersecretary of State at the Ministry of Finance.

The undersecretary has, in response, taken the position in determining the taxpayer’s property tax in relation to structures erected on such land. It was pointed out that in this case we should refer to the principle of superficies solo cedit, according to buildings and installations permanently connected to the land, and with the ownership of the land.

After analysing the Civil Code it has been established in this opinion, that the real estate tax for the components of wind turbines, as well as other structures, that were (for a limited period, in accordance with the will of the parties) built for temporary use, are owners of those structures. It is also the owners of the structures, and not of the land, who are under obligation to file tax returns for real estate tax with respect to structures of that kind. In confirmation of the presented positions the judgement of the Regional Administrative Court, Poznań (dated 28th October, 2015), Reference: III SA/Po 110/09, which states that structures are only ‘attached to a piece of land in a permanent manner’, when they have not been erected for a limited time period.

Source: Gazeta Podatkowa (April 2015)