In 2020 taxpayers will have a new spokesperson, or more than a dozen spokespersons. What will be done by the Ombudsman and how will he function? How can we guarantee his impartiality? These are questions that have been raised by the institutions that have been giving opinions on the draft RPP Act.
The draft Law on the Ombudsman of the taxpayer is part of a package of laws replacing the existing Act dated 29 August 1997 – Tax Ordinance, applicable from 1 January 1998 This project is now after the public consultation phase and after stakeholders have given their opinion.
The establishment of the RPP raises a lot of concerns expressed by the institutions concerned by sending opinions to the project.
Repeated allegations against government plans are the lack of precise rules to ensure the Ombudsman's impartiality, as well as the overlap of the competences of the MPC, the Ombudsman (RPO) and the Ombudsman on the rights of small and medium-sized enterprises.
„Flower for a goat’ administration
According to the main bureaucratic assumptions, the machine will increase by the Ombudsman, his 16 alternates, 32 local representatives and those serving their offices. The MPC will be appointed by the Prime Minister on 6-year a term of office, at the request of the Minister responsible for public finances.
He is to work with the SME Ombudsman, to whom Adam Abramowicz is now reminded, for many years a member of the Law and Justice (he resigned his membership after he was appointed as a spokesman). The Union of Entrepreneurs and Employers stresses that the spokesperson cannot be a “flower for a goat” of the administration.
The ombudsman's independence from the party or executive authority is his main quality.
The draft bill on the establishment of the MPC, following comments on this issue, states, fortunately, that "a spokesperson cannot belong to a political party, a trade union, or to conduct economic activities, as well as public activities incompatible with the dignity of the office".
Opinioners point out that each MPC candidacy should be consulted by professional authorities of lawyers, legal advisers and tax advisers.
The National Board of Experts proposed that the draft law should be added to a provision in accordance with the Tax Advisory Act (Article 3(1)). The selection criteria for the Ombudsman would then include the record that the MPC may be the person who
• is distinguished by a high level of knowledge of tax law,
- has at least ten-year documented experience in the area of tax law application,
- by at least ten she has been a lawyer, legal adviser or statutory auditor for years and, at that time, has been primarily engaged in tax advisory activities.
Tasks of the Ombudsman
The scope of the RPP is quite broad and largely coincides with the activities of the Ombudsman and the SME Ombudsman, with the project assuming priority of this second an ombudsman for the exercise of his or her powers in the case of business matters subject to his or her protection on the basis of Act dated 6 March 2018 on the Ombudsman for Small and Medium Entrepreneurs (Journal of Laws, item 648). In this respect, the competences of both ombudsmen will be aligned.
The draft law provides that the Ombudsman's tasks will include: 1) the assessment of draft regulatory acts in the field of tax law; 2) promoting mediation between taxpayers and tax authorities; 3) liaising with associations, professional authorities, civil movements, other voluntary associations and foundations, organisations representing taxpayers and foreign and international bodies and organisations working to protect the rights of the taxpayer in monitoring the quality of tax law and its reforms; 4) conducting educational and information activities in tax law; 5) an analysis of the case law of the administrative courts in tax matters and the case law of other courts and tribunals in so far as they affect the resolution of tax cases; 6) analysis of general interpretations issued under the Act - Tax Ordinance and interpretations of individuals issued under the Act - Tax Ordinance; 7) submitting assessments to competent authorities, organisations or public institutions and proposals to ensure effective protection of the rights of the taxpayer, to strengthen the consistency and efficiency of tax law, to remove unnecessary procedures, to formal requirements or to improve the way cases are handled; 8) to refer the Ombudsman to the Constitutional Court on matters relating to the rights of the taxpayer with a request in the cases in question under Article 188 the Constitution; 9) analysis of the way tax authorities deal with complaints and requests made under the rules laid down in the Act - Tax Ordinance; 10) other actions, in so far as they serve to protect taxpayers' rights.
With regard to the protection of taxpayers' rights, the Ombudsman will be entitled, in particular: 1) to request the competent authorities to take a legislative initiative or to issue or amend other regulatory acts in tax matters; 2) participate as a mediator in tax, administrative and judicial proceedings; 3) to apply to the competent authority for an individual interpretation in the case of a taxable person who is unable to make such a request on his own or who is in excessive difficulty; 4) to apply to the Minister responsible for public finances for a general interpretation under the Act - Tax Ordinance; 5) occurrence under the law - Tax Ordinance to the Minister responsible for public finances, requesting general clarifications of the provisions of tax law relating to the application of those provisions (tax explanations), in cases of interpretational doubt and relevant to the group of taxpayers, or where this could result in a significant reduction in the number of requests for individual interpretations; 6) to request the Supreme Administrative Court to adopt a resolution to clarify the legal provisions which raise doubts about the application of which has led to a discrepancy in the case law and the decision is relevant to a group of taxpayers or may result in a reduction in the number of individual cases in courts; 7) to seek the initiation of tax proceedings, to bring an action before the administrative court, including a cassation action before the Chief Administrative Court, to bring an action for the finding of non-compliance with the law of a final judgment, and to participate in proceedings before a public administration or court, on the rights of the Prosecutor; 8) directing an application to the authority in which the activity was found to be in breach of the rights of the taxable person; 9) request the competent authorities to suspend enforcement or enforcement proceedings against the taxable person; 10) inform the competent supervisory or control authorities of identified irregularities in the functioning of the tax authorities; 11) inform the competent authorities of the identified barriers and difficulties in the performance of tax obligations; 12) the presence, at the request of the taxable person, of the Minister responsible for public finances with a view to issuing a decision repealing or amending the final decision referred to in the proposed Article 470(5) new Tax Ordinance.
Polish Confederation Lewiatan points out that the opinion of draft tax legislation will be outside the scope of the RPO action, which, in principle, would not have the power to assess the proposed changes in tax law from the perspective of all taxpayers.
The National Board of Tax Advisors, noting the convergence of positions of the RPO and the RPP, proposed that this second became a deputy RPO, dealing only with tax law issues. "Unfortunately, the project promoter has not considered such a scenario at all," the KRDP emphasises.
- It should be stressed that according to section 12 point 1 Principles of Legislative Technology (Annex to the Regulation of the Prime Minister from dn.
20 June 2002 on the "Rules of Legislative Technology", Journal of Laws of 2016, item 283 as amended) the justification for the draft law should include a presentation of options for alternative measures to the adoption of the proposed law to achieve the desired objective.’
The Union of Entrepreneurs and Employers summarizes the project very clearly: “We consider that the Ombudsman for the Rights of the taxpayer is an unnecessary institution because he would duplicate the competence of the Ombudsman for Small and Medium Entrepreneurs.
In addition, the provisions concerning his office include two fundamental shortcomings that lead to doubts about the actual effectiveness of his actions – the lack of adequate independence from the Minister of Finance, as well as an extensive bureaucratic structure, much more numerous than the structures of comparable offices.
In the end we point to the need to solve real problems of Polish entrepreneurs, i.e. to implement an urgent reform of tax law and to repair the judicial system in a real way, not just by making personnel changes."
Author:
Katarzyna Kołbuś - Editor leading RB Magazine. From Over 10 years related to industry press, including the Financial Gazette and portal ipip.com.pl, which is devoted to finance, taxation, law, politics and the economy. She graduated from Polish philology at the UMCS and the language editing of the text at the University of Warsaw.