One of the changes introduced by the "Polish Deal" is a ban on depreciation of residential properties. This ban has been in effect since 2023. Taxpayers who began depreciation before 2022 hoped that the courts would rule that this ban violates the principle of protection of acquired rights, which would allow for the full depreciation of the property. The Constitutional Tribunal has not yet issued a ruling unequivocally stating that the regulations prohibiting depreciation are unconstitutional. Administrative court rulings also differ on this issue. In some judgments we can read that this ban is inconsistent with the Constitution (judgment of the Regional Administrative Court in Łódź of 27 June 2023, reference number I SA/Łd 258/23), in others that it is consistent with the Constitution (judgment of the Supreme Administrative Court of 13 July 2023, reference number II FSK 119/23), the third group of judgments are judgments in which the court refuses to assess the constitutionality of the provisions, considering that it is the exclusive competence of the Constitutional Tribunal (judgment of the Regional Administrative Court in Kraków of 16 September 2022, reference number I SA/Kr 488/22).
A general partnership that purchased an apartment in mid-2021 and designated it as its registered office had doubts regarding the applicability of the depreciation ban. Therefore, it applied for a tax ruling. It stated its position that it had the right to continue depreciating the apartment. It argued that the purpose of the residential property depreciation ban was to minimize passive income from rental apartments. Since the applicant's apartment is not intended for rental purposes, the ban in question would not apply, according to a purposive interpretation.
The Director of the National Tax Information Service disagreed with this position. In his interpretation (0112-KDWL.4011.64.2023.1.WS), he indicated that the wording of Article 22c item 2 of the Personal Income Tax Act clearly states that residential real estate is not subject to depreciation.
This interpretation was appealed. Following the appeal, the Regional Administrative Court in Wrocław issued a judgment on May 9, 2024, overturning the appealed interpretation. Agreeing with the company, the court pointed out that the ban on depreciation of residential real estate applies only to taxpayers who generate income from rental, sublease, lease, sublease, and other similar agreements. The Regional Administrative Court further stated that if the depreciation ban applied to residential real estate in every case, Article 22j, paragraph 2, item 3 of the Personal Income Tax Act, which de facto governs the depreciation period for residential buildings, would be a null and void provision. The linguistic interpretation cited by the interpretative body therefore leads to an absurd result.
The court agreed with the company that the legislature's goal was to limit tax preferences for landlords. The justification for the draft amending act indicates that the ability to include depreciation deductions on rented apartments, particularly those on the secondary market, in tax-deductible costs means that income derived from this source is, under current law, effectively very often tax-free. Depreciation deductions on these components reduce taxable income to such a level that no income tax is payable.
Ultimately, the court pointed out that by deciding to purchase a fixed asset in the form of an apartment, taxpayers were making long-term investments. At the time of purchasing, taxpayers had the right to expect that they would be able to depreciate the property at its initial value, at least for the periods applicable at the time it was put into service, provided it was complete and fit for use. Eliminating this right therefore violates the principle of protecting acquired rights. While entities renting apartments can compensate for the lack of depreciation with rental income, entities that used the property for their own purposes will incur losses as a result of the change in regulations, in a manner they could not have foreseen.
This article is for informational purposes only and does not constitute legal advice.
The law is current as of October 13, 2025.
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