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Windfall tax in Poland - key features of the draft and main concerns
On 29 May 2026, a draft act introducing a so-called windfall tax was published on the website of the Government Legislation Centre. The proposed legislation reflects the trend observed in recent years of taxing extraordinary economic rents in the energy sector. However, its design – particularly in the context of retroactivity – raises significant constitutional and practical questions.
Below, we present the key features of the draft and the main areas of risk.
Who will be subject to the tax?
The scope of the proposed tax is relatively narrow and covers exclusively the fuel sector. Taxpayers will include entities engaged in:
- the production of liquid fuels (through the refining of crude oil),
- the trading of liquid fuels (including imports and intra-Community acquisitions), provided that they hold the relevant license to trade fuels with foreign entities.
In practice, the legislation is expected to cover a relatively small group of the largest companies – an estimated 20–30 entities operating in Poland.
When is the tax expected to be introduced?
The draft provides for the act to formally enter into force on 1 August 2026. At the same time, income earned earlier – between 1 March 2026 and 31 December 2026 – is to be subject to the tax.
The first advance payment would therefore cover several months retrospectively and would be due by 25 August 2026.
How will the taxation mechanism work?
The draft provides for a relatively complex mechanism for identifying “extraordinary profits.”
The tax base is to be the excess of actual revenue from the sale of fuels over hypothetical revenue, i.e. revenue that the taxpayer would have generated at a “normal” margin level.
Hypothetical revenue is determined using a so-called reference margin based on the taxpayer’s historical average margin, increased by 20%, but not lower than 2%.
The mechanism is intended to tax only the portion of results exceeding the level considered “normal.”
The tax rate is 75% of the tax base.
In practice, this means a very high marginal tax burden on excess profits from fuel sales, although formally only on the portion exceeding the reference threshold.
How will the tax be settled?
The tax will be paid in the form of monthly advance payments on a cumulative basis, by the 25th day of the following month, and settled annually by 30 April 2027.
At the same time, the legislator excludes the possibility of treating the tax paid as a tax-deductible expense for CIT/PIT purposes.
How much revenue is expected?
According to the regulatory impact assessment, total revenue is expected to amount to approximately PLN 5 billion, of which PLN 4.75 billion in 2026 and PLN 0.25 billion in 2027.
These revenues are intended to compensate the state budget for support measures currently being implemented, including VAT and excise duty reductions and price regulations.
Economic and political rationale
The draft refers to extraordinary market events in 2026, in particular:
- a sharp increase in oil prices (from approximately USD 65 to over USD 120 per barrel),
- a significant increase in refining margins,
- the simultaneous burden on consumers caused by high fuel prices.
According to the drafters, part of the fuel sector has generated profits of an “economic rent” nature, resulting not from operational efficiency but from a geopolitical shock.
The tax is therefore intended to serve redistributive, stabilizing and fiscal functions, including financing support measures.
Key constitutional and practical concerns
The most significant issue with the draft is its potential incompatibility with the Constitution of the Republic of Poland. The draft expressly provides for the taxation of income earned before the Act enters into force, which constitutes a breach of the fundamental principle prohibiting the retroactive application of tax legislation (lex retro non agit). The explanatory memorandum attempts to justify this solution by pointing out that the prohibition of retroactivity is not absolute in tax law and that exceptions may be possible in extraordinary circumstances. At the same time, the drafters themselves acknowledge that this approach requires assessment in light of Article 2 of the Constitution, which establishes the principle of a democratic state ruled by law.
In practice, this creates a real possibility of challenging the legislation as violating the principle of protection of citizens’ trust in the state, the principle of legal certainty and the prohibition of retroactive legislation.
The calculation of the tax base may also prove problematic, as it is based on accounting regulations and is intended to take into account the results of hedging derivative financial instruments.
Conclusions
The proposed polish windfall tax forms part of a broader european trend toward taxing extraordinary profits in the energy sector. At the same time, its design contains several elements that significantly increase legal risk, primarily due to the retroactive taxation of income.
From a practical perspective, this means that if the legislation enters into force, it will likely give rise to significant disputes over its interpretation and potentially to constitutional complaints.
