voluntary disclosure – how and when to use it

voluntary disclosure is not a new institution, even used for many years and, fortunately, does not intend to disappear from the Polish legal system. It is worth noting that, fortunately, because entrepreneurs – not always intentionally – can commit an act that is considered criminal by Polish tax regulations. If the tax authorities are informed in an appropriate manner and at the right time by the perpetrator of the act, he will avoid being punished.

voluntary disclosure has been regulated Article 16 Tax Penal Code[1].

It has already been mentioned in general what it is, but it is worth to quote that according to section 1 of the above provision: No penalty for fiscal criminal offence or fiscal misdemeanour the perpetrator who, after having committed the criminal offence, has notified the requested authority of the offence, revealing the essential circumstances of the act, in particular the persons involved in its execution.

However, this does not mean that anyone may submit such notice at any time and avoid punishment, section 5 and section 6 the above Article contains the relevant exceptions.

When voluntary disclosure is ineffective

To begin with, it is worth stressing when the institution cannot be used voluntary disclosure. It shall be ineffective in the following situations:

if it has been filed at a time when the law enforcement authority has already had a clearly documented message of committing fiscal criminal offence or fiscal misdemeanour,

if it has been submitted after the law enforcement authority has commenced its official activity, in particular search, verification or inspection to be disclosed fiscal criminal offence or fiscal misdemeanour, unless the act has not provided grounds for initiating proceedings for a prohibited act.

To voluntary disclosure has been effective if, as a result of a prohibited act, the public debt has been reduced, the due due shall be fully paid within the time limit set by the competent authority of the investigation. Where the prohibited act does not consist in the reduction of public debt and there has been a compulsory forfeiture of items, the offender should submit the items and, in the event that they cannot be filed (or if they could be destroyed, damaged or stored would be disproportionately costly), pay their monetary equivalent.

Who can't use the institution voluntary disclosure

Not everyone can benefit from this institution either. It does not apply to a particular type of offender, i.e.:

• directing the performance of a disclosed prohibited act,
• those who, through the use of another person's addiction to themselves, have instructed the person concerned to carry out a disclosed criminal offence,
• those who have organised a group or a relationship to commit fiscal criminal offence or have managed such a group or union; except where the perpetrator concerned has notified all members of the group or association,
• urging another person to commit fiscal criminal offence or fiscal misdemeanour in order to refer her to the prohibited action.

How can this notice be submitted? According to Article 16 section 4 the Code of Criminal Tax – either in writing recorded in paper or electronic form or orally in the minutes. In addition, an electronic document must bear a qualified electronic signature, a trusted signature or a personal signature. Such a letter shall be submitted by electronic means, including through the tax portal.

Submission possibility voluntary disclosure by electronic means

However, the possibility of submitting voluntary disclosure by electronic means will be prevented. This is due to enter into force 5 October current year of provisions of the Electronic Service Act[2] amending Article 16 section 4 Tax Penal Code. After the amendment, the provision is to read as follows: Notice shall be made either in writing or orally in the minutes.

Theoretically, given the purpose of this provision, such a scenario does not have to be fulfilled. The aim is to compare the paper version of the document with the electronic version, which is clear from the justification to the above law[3]:

An amendment to the relevant terminology legislation takes place First, in respect of the conversion of the word ‘written’ to ‘written’, the expression ‘written’ to ‘written’, the word ‘written’ to ‘written’ or ‘written’ (depending on the context of the sentence). This amendment aims to balance the paper form with the electronic form.

The term ‘in writing’ refers to the way in which the information in the form of letters is recorded, in contrast to the term ‘written’, which suggests that the document must be provided in paper by hand.

However, this optimistic interpretation is in contradiction with the fact that the amendment of the rules in the Code of Criminal Procedure[4] (which shall apply mutatis mutandis to proceedings in cases of fiscal criminal offence and fiscal misdemeanour – is due to Article 113 the Tax Penal Code) only matches the written declaration with the electronic declaration (and this amendment will also be introduced by the Electronic Service Act).

It's about being introduced. Article 116 section 1 Code of Criminal Procedure[5], If the law does not provide otherwise, the parties and others entitled to take part in the trial may make statements, including requests, either in writing or orally to the minutes. A written declaration shall also be considered an electronic declaration[6].

Importantly, these changes will not take place simultaneously, changes to the Code of Criminal Procedure will only be introduced 1 October 2029

Is it therefore possible to submit voluntary disclosure by electronic means will be prevented from almost equal 8 Years? There is no clear answer to that at this point. It is only certain that it would be sad if the possibility of submitting was introduced voluntary disclosure by electronic means it has been prevented by a regulatory gap.

https://www.sejm.gov.pl/sejm9.nsf/druk.xsp?nr=239