The draft revision of the IRS published in early January can be found many seemingly minor changes, behind which there are significant consequences for the perpetrators of tax offences and exfoliation. Let us look at some of them.
The proposed changes show the direction in which the code is to be pursued. In the opinion of the Ministry of Justice, increasing penalties is to be an effective means of combating tax crime
Old wording Article 23(1) k.k.s. indicates that when the fine is imposed, the lowest daily rate is 10, highest 720 PLN. The amendment proposed by the Ministry of Justice raises the minimum daily rate from 10 to 20.
This amendment appears to be minor, but looking at the mechanisms related to the fine and the replacement enforcement of this penalty, it can be seen that the new wording of the rule will result in a real increase in the penalties imposed on the perpetrators of prohibited acts.
The fine shall apply by determining the daily rate and the number of those rates. The amount to be paid by the convicted person is the product of these two values. An example fine may be fined 40 daily rates of 100 PLN Each.
In the face of an impenetrable offender, the court may decide to convert this penalty to socially useful work (Article 45 k.k.w.). In that case, 10 daily rates are equivalent to a month of socially useful work. Entry into force of the amendment Article 23(1) k.k.s.
will make the imposition of fines even in the lower range more severe than is the case at the moment, including in the event of failure to pay it. A convict who cannot pay such punishment will have to do socially useful work longer.
A major change in the amount of penalties that can be applied by the Tax Penal Code is the planned change in Article 28(2) k.k.s. in terms of the amount of a possible sentence of imprisonment in the event of an exceptional exacerbation. Ministry of Justice plans to increase the upper limit of imprisonment from 10 years to years 15.
At this point, it is worth giving the drafter the floor: “ Bearing in mind that according to Article 28(2) the fine shall not be exceeding 10 years of imprisonment, according to the project promoter, this threat is insufficient to prevent some perpetrators from taking possession of the State Treasury." Whether increasing penalties is an effective way of eliminating crimes that reconcile with the interests of the Treasury is only to learn in an unspecified future.
Experience so far allows us to be skeptical about such proposals.
The proposed change in content is also worth noting Article 24(5) k.k.s. concerning the extension of the possibility of a judgment against the person responsible for the benefit of the property obtained.
It should be recalled that the provisions of the Tax Penal Code allow the person liable for the fine to be made liable to the fines by an entity whose deputy (acting as a proxy, administrator, employee, etc.) is the perpetrator of the act and has been or could have benefited from any crime.
Notwithstanding the liability for the fine, such an entity may be subject to the obligation to reimburse the property benefit. In practice, there has been doubts as to whether, in the case of ‘consuming’ this benefit, a duty to reimburse the benefit may be imposed on the person in charge of the meal.
New wording of the rule with Article 24(5) It removes these doubts, as we read in the explanatory memorandum to the Act, by stating that the court will be able to require the person responsible to recover, including the equivalent of the property benefit it has obtained.
Author:
Mikołaj Stanisławski
From 2017 Associated with Russell Bedford Poland. In 2007 graduated from the Faculty of Law and Administration of the University of Warsaw. In years 2008-2011 he made an attorney's application. From 2011 entered on the list of lawyers at the District Bar Council in Warsaw. In 2016 He graduated from the Postgraduate Tax Studies and Tax Law of the University of Warsaw. Specializes in tax and tax matters.