The Ministry of Justice published on the pages of the government's legislative centre the draft amendment of the Act the Tax Penal Code. Among the several proposed changes one may be of significant importance not only to entrepreneurs but also to the average “Kowalski”, a natural person who does not carry on business. The aim is to limit the possibility of using the so-called voluntary disclosure.
voluntary disclosure is an institution of the tax penalty code which avoids liability in the event of a criminal offence, or fiscal misdemeanour. And this is not only about large-scale tax fraud, but also about minor errors in the performance of tax duties, such as failure to make the required declarations or tax returns in due time, payment of a tax at a lower rate, or unfair keeping of tax books. Any taxable person who fails may avoid liability if, prior to its detection, he informs the tax authority of the offence, or fiscal misdemeanour and at the same time fix the mistake – for example, it will make a tax return. Opportunity to use voluntary disclosure is not unconditional, however. voluntary disclosure ineffective where:
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- the law enforcement authority has already had knowledge of the offence committed,
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- the law enforcement authority has already undertaken official disclosure activities fiscal criminal offence or fiscal misdemeanour, unless the act has not provided grounds for initiating proceedings for that act,
- The perpetrator directed the performance of the disclosed criminal act, using the addiction of another person to himself, ordered the performance of the disclosed criminal act, organized a group or association to commit fiscal criminal offence or such a group or union he led, urged another person to commit fiscal criminal offence or fiscal misdemeanour in order to refer her to the prohibited action.
This means, for example, that if the tax office started tax controls on personal income tax for a given year, and the taxpayer forgot to give tax returns, his voluntary disclosure It won't allow liability to be excluded.
Draft amendments to the Act significantly restrict the possibility of using voluntary disclosure by modifying the conditions for its effectiveness. The provisions provide that voluntary disclosure will be ineffective after the authority has started its business activity
Draft amendments to the Act significantly restrict the possibility of using voluntary disclosure by modifying the conditions for its effectiveness.
The provisions provide that voluntary disclosure will be ineffective after the authority has started its business activity, in particular search, checking or inspection to be disclosed fiscal criminal offence or fiscal misdemeanour. The change appears to be minor but may have serious consequences for taxpayers.
After change to recognition voluntary disclosure for ineffective action, it will be sufficient not only by the law enforcement authority, e.g. the prosecutor or the U.S. Warden, but by any other state authority, e.g. ZUS, PIP.
second the proposed amendments concern the removal of the reservation that the official activities carried out by the authorities had to provide the basis for the initiation of tax criminal proceedings. This was only relevant in a situation where the result was the detection of an offence. After the changes, it won't matter.
This puts taxpayers in a very awkward position. It may be that the activities carried out by the Social Insurance Institution, for example, which are not related to tax obligations, will prevent the taxpayer from submitting voluntary disclosure, even if the result is no grounds for initiating tax criminal proceedings.
Tax authorities will also be able to undermine the effectiveness of the complex voluntary disclosure for example, by indicating that they are already conducting business activities to detect tax irregularities, e.g. analytical activities related to the processing of data received in uniform control files.
The Ministry of Finance explains that the proposed changes will not apply to minor errors made by taxpayers. However, we know from the autopsy that the actions of tax authorities are not always set in front of taxpayers. The fiscal assurances will be verified by the practice of applying the new rules by tax officials, if they enter into force in the proposed form.
Author:
Marcin Kołkowicz
Tax adviser, tax consultant At Russell Bedford Poland Sp. z o.o., a graduate of the Administration, Management and Marketing of the Catholic University of Lublin named after John Paul II. The subject of tax law deals with from 2012. He gained experience in Lublin and in Warsaw tax advisory offices. Author and co-author of many tax publications, in particular for the legal and tax portal TaxFin.pl. In his career, he dealt with both direct and indirect taxation issues, with particular emphasis on VAT.