In 2018 the rules on the electronic system of the clearing house (STIR) have gradually entered into force. The system was introduced on the basis of Act dated 24 November 2017 amending certain laws to prevent the use of the financial sector for tax fraud (codification: Journal of Laws of 2017, item 2491). The Act amended (among other things) Act dated 29 August 1997 Tax Ordinance (Single text: Journal of Laws of 2018, item 800, with changes).
The introduction of the STIR was aimed at preventing criminals from using the financial sector to transfer funds from tax fraud, concealing transactional accounts or avoiding payment of due taxes. The system examines daily information on changes in the status of business accounts (e.g.
account creation, liquidation, change of proxy, etc.), seeking transactions that have high risk status. If the results of the risk analysis indicate that an entity may use the activities of banks or credit unions for purposes related to tax fraud, the tax administration may decide to block the entity's account for a period up to 72 hours
Punishment for ‘possibility’ of using an account for criminal purposes
If there is a reasonable concern that an entity will not perform an existing or expected tax liability exceeding the equivalent 10,000 EUR, tax may extend the deadline for blocking the account in time to 3 months.
The issue of granting such broad powers to the tax has raised doubts from the very beginning. In particular, it is a condition that the account is blocked, which is itself ‘possibility to use the activities of banks or credit unions for tax fraud purposes’. The occurrence of the ‘possibilities’ itself means that any entrepreneur may be in the STIR field.
WSA in Warsaw on the IRS side
Concerns about the system were confirmed by the recent precedent of the Provincial Administrative Court in Warsaw (reference no.: III SA/Wa Directive 2057/18). He caused quite a stir because the WSA felt that when extending the account's lock to three months, the tax administration does not need to conduct evidence proceedings against the entrepreneur. It is sufficient that, after an analysis of the cash flows, the official finds that there is a risk of using bank accounts to extort tax and default.
Before the court, an o.o. company to which the blocking of the account was applied indicated that the officials were acting entirely freely, on the basis of subjective conviction, without carrying out evidence and providing the company with an active participation in the proceedings.
The company also claimed that the unjustified extension of the blocking of the account violates the Constitution. The court did not divide the arguments put forward and dismissed the company’s complaint.
The Court pointed out that only the existence of a non-compliance with a tax obligation exceeding the equivalent may be relevant to the assessment of the contested provision. 10,000 EUR.
He also indicated that he did not exist exhaustive a catalogue of circumstances which are relevant for assessing whether the conditions for the extension of the lock have been met. In any case, there may be other circumstances.
It should be noted that blocking a company's bank account is an extremely drastic solution. Officials should bear in mind that the imposition and extension of the blockade may distort the financial liquidity of the company and, in extreme cases, lead to the collapse of the business.
There is a risk that tax administration officials who will assess the transactions selected by the system will not care about the fate of taxpayers and will abuse the blocking of the account even if there are reasonable doubts about the guilt of entrepreneurs.