Amended provisions Tax Ordinance, which entered into force 1 January 2019 introduced many new developments into Polish legislation. The provisions that have been stimulating negative emotions from the very beginning were those introducing reporting of tax schemes to the Head of the National Tax Administration.
After less than a year of these provisions, the National Board of Tax Advisors decided to challenge them to the Constitutional Court. The application indicated that it is necessary to examine the non-compliance of Chapter 11a Tax Ordinance with the Constitution of the Polish Republic on the issue of reporting tax schemes as a result of which the professional secrecy of tax advisers is undermined.
Implicit provisions introduced for growth are binding on the institution of professional secrecy of tax advisers
According to Prof.
Adam Mariański, Chairman of the National Board of Tax Advisors, the proposal to the Constitutional Court was a summary of what the KIDP has pointed out for several months, namely that the rules on reporting tax schemes violate the professional secrecy of tax advisers, which is the foundation of this profession, and should therefore be defended.
The professor also pointed out that, as tax advisor, we do not want to undermine the reporting obligation itself, especially since it was introduced by a European directive. However, disproportionate obligations are provided for taxpayers and their advisers for the purpose of implementing these provisions.
The KIDP president pointed out that these provisions were written in such a complex way that they caused many interpretational doubts. According to the Professor, they should be rewritten, in a more transparent way and so that they do not violate the Constitution of Poland.
Professor Adam Mariański's position should be agreed. Provisions Tax Ordinance as regards the reporting of tax schemes, provision is made for the possibility of exempting a tax adviser from the obligation of professional secrecy necessary for the pursuit of a profession of public confidence in the family.
The rules also introduce situations where the provision of information does not constitute a breach of the obligation to maintain legally protected professional secrecy. Therefore, we can clearly say that such rules are incompatible with the practice of tax adviser.
Provisions concerning the obligation to report tax schemes introduced to Tax Ordinance as implementation result Directive 2018/822,introduced much earlier than in other countries of the European Union and much broader than necessary. These steps led to rules on reporting tax schemes building an unclear form of reporting itself.
Doubt is raised by the way reporting is to be carried out, as well as by a pattern requiring reporting. This brings many problems in terms of interpretation and application of the new law. All of this also involves criminal and tax liability in case of misconduct.
Appeal to the Constitutional Court of the provisions in Chapter 11a Tax Ordinance That's a step that had to be taken. The unclear provisions introduced for growth are binding on the institution of professional secrecy of tax advisers.
It should be pointed out that disclosing professional secrecy undermines the social role of persons whose professional secrecy is essential for the proper pursuit of the profession, while violating the right to protect the secret of communication.
Let us hope that, as declared by KIDP, it will take steps to eliminate dubious provisions from the Polish legal system.
Andrzej Dmowski, tax advisor, attorney Russell Bedford, for Business Wprost: https://biznes.wprost.pl/branze/10289291/prawny-bubel-w-ordynacji-podatkowej.html