Professional secrecy of tax advisers as the foundation of the profession of public trust

Tax advisory is inextricably linked to the tax institution and therefore also to their functioning and history. Initially, those doing this profession were limited mainly to advising kings, rulers, and leaders. It was only with the development of functionality and the increase in complexity of tax settlements that the scope of services expanded to further social groups.

The need to provide tax advisory services in Poland was connected with changes in the system that took place. In 1989 and early years 90.

When this profession became important to an increasing number of people in the world, in the countries of the Eastern bloc it faced purely systemic obstacles resulting from a centrally controlled economy.

Abandoning this system in Poland and creating so-called economic freedom caused the urgent need for support in the settlement of fiscal burdens.

From 1 January 1992 there were new declaratory rules for the taxation of income resulting from Act dated 26 July 1991 on personal income tax (1) and Act dated 15 February 1992 on corporate income tax (2).

The profession of tax adviser was established on 1 January 1997 Act dated 5 July 1996 on tax advisory (3), although in practice it has been performed almost since the beginning of years 90. During this period, no qualification requirements were imposed on those providing such services.

It is only in the above law that the conditions and rules of pursuit of the profession and the principles of professional ethics are laid down (4), the organisation of the government of tax advisers and the principles of its operation. This includes the obligation of professional secrecy.

Public confidence

In the Constitution of the Republic of Poland dated 2 April 1997 the concept of "public trust profession" (5). This has given special status to certain professions. However, this also involved imposing specific obligations.

The status of trust should not result solely from giving it to the Constitution of the Republic of Poland, but the regulations governing it should also institutionalise trust in the profession. It was.

one from the implementation objectives Act dated 5 July 1996 In the Constitution of Poland there is no legal definition or directory indicating which professions are to be included in favour of public trust.

According to the Supreme Court (SN) ruling (6) such status may be given only by a law which expressis verbis defines the profession in this way. This creates the so-called formal concept of the profession of public trust.

The establishment of such professions cannot, however, be a domain exclusively of specific laws, as these are lower-ranking provisions and as such do not affect the shape of constitutional institutions.

Therefore, the essence and scope of this type of profession were finally established, inter alia, in the case law of the Constitutional Court (CC).

It considered the substantive concept of a profession of public trust and considered that "the Constitution does not define the criteria on which the legislator may qualify individual professions as professions of public trust. It indicates the characteristics of local governments (7).

This means that the possibility of qualifying as a public trust profession is due to the specific characteristics associated with the profession and the starting point is the definition of public trust (8). At the same time, it was stressed that the pursuit of a profession of public trust requires the individual nature of the work and therefore cannot be exercised by legal persons or entities without legal personality.

The literature points out that “the profession of public trust is a profession of handling personal human needs, involving the acceptance of information relating to personal life and organised in a manner that justifies the public's belief that the use of this information by service providers is appropriate to the interests of the individual.

The pursuit of the profession of public trust is further defined by the standards of professional ethics, the special content of vows, the tradition of professional corporations, or the particular nature of higher education and the specialization obtained.

The admission by a specific person of this profession to the sphere of his/her privacy must, as his/her korelat, have confidence that this admission will not be abused" (9).

It follows that public trust professionals must meet high ethical requirements. This is reflected, among other things, in the need to make solemn vows before entering the profession, to comply with the codes of professional ethics, as well as in the prohibition of disclosing information on personal property of entities using these services, etc. At the same time, an appropriate disciplinary responsibility model is needed to meet these requirements.

All these guarantees in practice and jurisprudence were removed from the used under Article 17(1) The Constitution of Poland the concept of "public trust". This establishes statutory restrictions on access to the profession in constitutional grounds.

In this regard, the CCC also held that there was no justification for the view that the requirements of the profession of public trust regarding, inter alia, the immaculate nature and the guarantees of proper pursuit of the profession constituted a restriction of freedom or obstruction of the exercise of rights.

These requirements result from the specific nature and importance of the tasks performed by such persons (10).

Although these judgments relate mainly to the profession of lawyer, they can also be applied to the specificity of the profession of tax adviser.

Compliance with these requirements, in particular the prohibition on disclosure of information obtained from customers, entails adequate immunity, i.e. release from criminal liability for concealing this information, even if it would be socially desirable to disclose it. That's what professional secrecy is.

Professional secrecy

Professional secrecy can generally be defined as information obtained as a result of performing work for the client. It may be part of the ethical code of the profession concerned, as well as subject to contractual security or internal regulation of the organisation concerned.

In Polish law there were various types of protected secrets, such as business, trade, contract, medical, etc. The obligation of secrecy is mentioned in a number of existing legislation, such as the Labour Code (11). At the same time, it is not directly defined in any legal act.

Professional secrecy (12) for tax advisers has been described under Article 37(13) Act dated 5 July 1996 On the basis of this provision, it can be concluded that the professional secrecy of tax advisors (14) is complete, i.e.

for ‘any information’ (15) obtained from customers in the course of their occupation (16), ruthless and indefinite.

The question of the indefinite duration of professional secrecy of tax advisers is the inability to shorten during the duration of that secrecy, and its full application after the end of the provision of tax advisory services to the client concerned, including the inability to contractually shorten the scope of that secrecy.

In addition, part of the doctrine also stresses the fact that the client is not able to shorten the validity of professional secrecy with regard to the tax advisor, including the exemption of the tax advisor from professional secrecy by the client itself. The author fully supports these requests.

However, provisions currently in force which are manifestly contrary to the positions put forward are, in particular, provisions on reporting obligations (17) tax schemes by tax advisers and possible exemption from professional secrecy by the client (18).

However, this does not mean that professional secrecy is completely indisputable. There are procedures whereby a tax adviser can be released from secrecy (see Article 37(2) Act dated 5 July 1996) (19). Furthermore, the obligation of secrecy does not apply to the information indicated under Article 37(4) of this law ( 20).

There is doubt about the scope of this and substantive professional secrecy of tax advisers. In accordance with the provisions Act dated 5 July 1996 The tax advisor is obliged to keep the facts and information he has learned about the pursuit of the profession confidential. The problem of interpretation comes down to a practical aspect, to which documents and information specifically extend to professional secrecy, i.e. for example:

• 1) accounting books, tax books (for the provision of services by a tax adviser to a client in the field of account keeping or tax books);
• 2) tax records (e.g. single control file — JPK);
• 3) external documents (documents received by the customer, from its counterparties, e.g. invoices for the purchase of goods or services);
• 4) own documents (documents issued by the customer, e.g. invoices documenting own sales);

1. Contracts and copies of customer contracts with counterparties (and e.g. transfer-to-receive protocols documenting the performance of services, acknowledgement of delivery and receipt of goods, shipping lists), provided by the client to the tax advisor in connection with the provision of tax records or tax advisory services for the preparation of legal and tax opinions;
2. the written and e-mail positions of the tax adviser to the client, in particular regarding existing tax risks at the client and the recommendations of the tax adviser;
3. information obtained during direct meetings of the tax adviser with the client and information on the facts that have arisen in connection with the provision of tax advisory services (e.g. the fact of participation in the meeting, the existence or non-existence of a commodity, the existence of a document).

Each of the above examples Under point 1-7 potentially falls within the scope of protected professional secrecy as ‘the facts and information with which [the tax advisor] has become acquainted with the pursuit of the profession’.

However, the positions of the tax authorities presented in the framework of tax proceedings, tax checks (customs and tax checks) or in the framework of ongoing investigations under the provisions of the Code of Criminal Procedure in the field of criminal tax offences (as financial bodies of investigation) are ambiguous or even contradictory.

There is also no consequence in the actions of prosecutors regarding the scope of professional secrecy of tax advisers and media subject to protection. Nor is there a uniform line of jurisprudence for courts ruling on the procedure for exempting tax advisers from professional secrecy.

The tax authorities consider that professional secrecy does not cover accounting books and tax books, and in particular data in the JPK (examples given Under points 1 and 2). They argue that tax records and JPK are sent electronically to the Ministry of Finance (the API gate made available by this ministry).

Consequently, the authorities of the National Tax Administration (KAS) have or will have access to the data included in the JPK. In addition, the client is required to send to the National Court Register (KRS) financial statements, which are available for tax authorities (21).

In conclusion, the tax authorities argue that due to the prior transmission of the JPK to the Ministry of Finance and the accounts to the KRS (public register), the professional secrecy of the tax adviser does not apply to these documents in electronic or paper form.

In relation to points 3 and 4 – as regards external documents (e.g. invoices for the purchase of goods or services from counterparties) and internal documents (e.g. sales invoices), the tax authorities consider that professional secrecy does not apply to those documents because:

• (a) they originate from ‘entities’ third” or are issued for ‘entities’ third”,
• (b) are in economic circulation,

(c) the data on these documents should be presented in the tax records (Contrast and taxpayer CCPs) and

(d) operators should ultimately send invoices via the National e-Faktur System (KSeF), enabling structured invoices to be issued and made available, to which KAS will, of course, have access.

Regarding customer contracts with counterparties (example with point 5), The tax advisers forwarded to the tax authorities are of the opinion that they are documents that determine the course of economic events, including the conditions for the conclusion of the transaction, its course, implementation and financial conditions. Consequently, the tax authorities argue that these documents should not be protected by the professional secrecy of the tax advisor.

In the author's view, none of the arguments raised concerning examples from point 1-5. It should be stressed that the defectiveness and unreliableness of the accounts is subject to tax penalties (22). Mistaken entry or non-entry of an economic event in accounts or tax accounts may result in an exposure to loss of public debt (23).

The fact that the accounts are not drawn up or prepared in an unfair manner is also subject to tax liability and criminal liability (24).

Consequently, the circumstances relating to the inclusion of data in accounting books or tax registers, which reflect the content of economic events or the fact that such documents are not prepared, should be strictly protected as professional secrecy of tax advisers.

In addition, accounting and tax documents such as VAT invoices (whether external or internal) may provide direct or indirect evidence of the fulfilment of the prohibited performance, i.e. fiscal criminal offence or fiscal misdemeanour and additional criminal offences (25).

Therefore, where the tax adviser receives the documents indicated in connection with the provision of tax advisory services, those documents and the information contained therein shall be protected as professional secrecy.

A similar argument can also be made on the question of the so-called source documentation for transactions (i.e. contracts, protocols, forwarding documents etc.). Such documentation may clearly indicate the correctness or flaw in identifying the tax consequences of the transactions in question.

It is the transaction documentation that is subject to detailed verification by tax advisers for the purpose of determining possible tax risks and advising the client on the correctness of public-law settlements.

Consequently, it should be clear that such documents and information resulting therefrom should be protected as professional secrecy.

For example z point 6, i.e. written positions of tax advisers expressed in the form of opinions, reports, e-mails, tax authorities in principle (26) accept that such documents constitute, in particular, the work of tax advisers and are protected as professional secrecy.

The last aspect remains the example of point 7, i.e. information on facts and events in which the tax advisor participated. There have been cases where a tax adviser was interviewed as a witness for attending a meeting, being in a place, having some documents or goods.

It should be noted that the mere fact that a tax adviser participates in a meeting in the performance of tax advisory services by him is covered by professional secrecy, regardless of the details obtained during that meeting.

Consequently, a tax adviser should not disclose information on the existence or non-existence of any event if that information has been obtained in connection with the performance of tax advisory activities until the court has released it from the obligation of professional secrecy.

In order to carry out its professional duties, the tax adviser should be provided with formal protection and guarantee against any attempt by the tax authorities to obtain the information entrusted to him by the client (27). The customer is their ‘owner’ and the advisor only uses them to provide his services.

Therefore, only the customer, taking into account of the important exceptions laid down in the laws, should decide whether to disclose them. Trust in a tax advisor is the essence of cooperation.

Without trust, both the customer will not be able to obtain the necessary advice and services of the highest quality and the tax advisor will not be able to perform their duties effectively. Professional secrecy therefore determines the meaning of this profession.

As a fundamental right and duty of tax adviser, customer tax information trustee, professional secrecy should be subject to special protection by state authorities. This mainly concerns the scope of the obligation of silence as well as the right to it (28).

The matter of secrecy involves not only public disclosure, but also private disclosure, which is all forms of communication.

In addition, this framework includes not only information or documents provided by the client but also all information which is not publicly available, including information provided by the administrative authorities.

Consequently, it should be stressed that the scope of this professional secrecy of the tax adviser – according to the author – extends to external evidence of a client (documents received from external client counterparties), to the client's own external evidence (documents issued by the entity and transmitted in the original to the contractor), to the client's internal evidence (as regards documentation of operations inside the entity), to the client's accounts and tax books, including any records kept for tax purposes, full commercial documentation, including commercial contracts, and to the position and recommendations of the tax adviser.

On the other hand, the personal scope of persons obliged to maintain professional secrecy is not limited to tax advisers included in the list of tax advisers in active employment, but also covers their employees, associates and contractors.

It should be stressed that according to Article 37(3)(29) Act dated 5 July 1996 the obligation of professional secrecy shall apply fully to persons employed by the tax adviser and to entities entitled to provide tax advice in the performance of tax advisory activities by those persons.

Consequently, persons employed by a tax adviser (30), Whereas, in order to be heard for reasons or for facts or information obtained in connection with the provision of tax advice by a tax adviser, the obligation of professional secrecy of which another person is the holder should be relied on; i.e. tax advisor.

Such persons should refuse to answer questions in the course of questioning them as witnesses (31), if the answer could lead to disclosure of professional secrecy. The procedure for exemption from professional secrecy in the light of the provisions of the Code of Criminal Procedure (32).

Attempts to interrogate as a witness persons employed in administrative positions in tax advisory offices or persons with little professional experience should be considered unacceptable because, due to lack of knowledge or experience, they may not rely on professional secrecy as to the facts and information obtained in connection with their work at a tax advisory office (33).

This means that, in order to ensure the secrecy of such persons, the provisions relating to this obligation should be included directly in the contracts or other internal regulations of the tax advisor’s office. For this purpose, e.g.

written declarations on the obligation of professional secrecy in respect of the work or orders performed shall be signed. It should be stressed that, if such person does not maintain professional secrecy, financial and disciplinary liability, on the basis of Article 37(3)(34) Act dated 5 July 1996, be borne by the tax adviser.

Any claim against the person responsible for failing to keep professional secrecy may be of a purely regressive nature.

In order not to break the professional secrecy of a tax adviser, it is also not appropriate to accept offers or orders that could lead to its disclosure. It is also impossible to report as evidence the testimony of a witness who is a tax advisor in order to disclose information covered by the secrecy.

An important exception to the obligation of professional secrecy, indicated directly In the Act dated 5 July 1996, is abolishing this obligation in certain specific cases In the Act dated 1 March 2018 to combat money laundering and terrorist financing (35).

Tax adviser as a obliged institution (36) is required to provide the General Financial Information Supervisor with information on a particular type of transaction (37). Another exemption provided for directly in the Act is the obligations to provide information on tax schemes.

The professional secrecy of tax advisers is an obligation to pursue this profession. It is ruthless; even the customer's statement of exemption from secrecy is not binding on the tax advisor. The statutory and ethical obligation has priority.

Professional secrecy of tax advisers in criminal proceedings

As mentioned earlier, the obligation of professional secrecy of tax advisers is not unconditional. The exception is introduced in this area, among others. Article 180(2) k.p.k. indicates that a tax adviser may be heard about facts covered by professional secrecy if they are fulfilled two the conditions together.

After first – The hearing is necessary for the sake of justice and after second – the fact that the hearing will take place cannot be established on the basis of other evidence (38). The person responsible for demonstrating compliance with these conditions is the prosecutor, in accordance with the onus probandi principle (39).

The Supreme Court states in its caselaw that “the possibility of carrying out any evidence other than hearing a witness after having been released from professional secrecy specified under Article 180(2) k.p.k. does not exclude indirect evidence, but prevents the court from issuing an order to be released from such secrecy" (40).

This means that only full compliance with these conditions is the basis for the abolition of the right to silence. The existence of impediments to the possibility of establishing facts on the basis of other evidence, no matter how significant, is therefore not a condition which meets the above condition.

In addition, that right shall be granted only to the court handling the case. In the preparatory procedure, a decision in this respect shall be issued within a maximum period of time. 7 the days from the date of service of the application, at a meeting without the participation of the parties, and they shall be complained against.

In judicial proceedings, the order shall be taken of its own motion.

Both the applicant, the suspect, the victim and the person whose professional secrecy is the subject of the application are entitled to complain against the order of the court in this respect. In the event of failure to meet certain conditions under Article 180(2) The court practice indicates that such complaints are highly effective.

It should be stressed that the decision on possible dismissal from professional secrecy of tax advisers is taken by the court, not the prosecutor. This independent court lays down the strict framework for this release from secrecy, i.e.

to what extent, in respect of which information, media (including data media), is necessary for the sake of justice and that such information cannot be obtained in any other way than by repealing the obligation of professional secrecy by a tax advisor (41).

At the same time, it should be noted that the position of the court given in the form of a refusal to grant consent to the repeal of the obligation of professional secrecy is not a ‘seriousness of the matter judged’.

This means that In one proceedings (whether they are preparatory proceedings or already court proceedings conducted under the provisions of the Code of Criminal Procedure), the prosecutor may repeatedly apply for an exemption from the obligation of professional secrecy in respect of the same person, including to the same extent.

In that case, the court should examine separately the statutory conditions of the possibility (or lack of it) (42) the release of a person from professional secrecy.

The specific provisions also apply to search and safeguarding of goods for those obliged to keep the tax adviser secret. I'm talking about Article 225(226) The search order shall be made in the form of a decision issued by the court in judicial proceedings or by the prosecutor in preparatory proceedings.

According to Article 8 Principles of tax advisor ethics: ‘In the event of a search in a premises where a tax adviser performs a profession or in a private apartment, he is obliged to request the involvement of a representative of the tax advisor’ (43).

The European Court of Human Rights (ECHR) has also expressed a specific and transparent position on the admissibility of the search of legal offices and, by analogy, the premises of tax advisers. Namely, "the search warrant cannot be formulated in a very general manner, law enforcement authorities must not indicate any specific justification for the inspection of all documents and should be familiar with them in the case, word interference, any interference must be "proportional"(44).

According to the above mentioned Article 225 k.p.k. where it is found that documents and items retained during the search are covered by professional secrecy, they shall be subject to a special procedure.

The persons conducting the search shall immediately forward all documents or data media, without being read to the prosecutor or court in a sealed package. These documents will only be subject to a substantive assessment of the protection of professional secrecy.

The search entity shall not be entitled to verify the position of the searched person, who invokes the obligation of professional secrecy. However, it is worth noting that according to Article 225(2) The documents shall not be subject to such protection if the holder is a person suspected of having committed a crime.

Article 226 k.p.k. provides that the professional secrecy of the tax adviser extends to data containing information covered by that secrecy and secured during the search. In this case, too, it is required that the D.A.'s application be filed for consent to their use in the proceedings. They must be subject to the same conditions as those mentioned. Under Article 181(2) At the same time, the obligation of professional secrecy should be waived only in order to give direction to the investigation.

As part of a reprehensible practice, law enforcement can be regarded as an element of the activity of addressing entire data media (server disks, whole servers, computers) in tax firms with other clients' data. The handling of computer servers on which the data of all clients of the tax advisory firm (e.g.

accounting books) is archived on an ongoing basis, in practice prevents the functioning of the tax advisor and may expose to significant harm and this tax advisor, and its customers (no access to current financial data and accounting books, source documents archived in electronic form).

In addition, the element of control over the prosecution's activities in the ongoing preparatory proceedings (in the field of searches and requests for the issue and detention of items) is often illusory and boils down to a complaint about the prosecutor's activities to the Chief Prosecutor (45) or complaints about the prosecutor's decision to search and demand the release of the items (46).

The so-called defence secret remains a separate issue. In the light of the current legislation, the tax adviser is not entitled to serve as a defender in criminal proceedings, including in cases of fiscal criminal offence and fiscal misdemeanour (unless he is independently entitled to a professional lawyer or legal adviser).

However, it is common practice, given the specific nature of proceedings, to cooperate with lawyers and legal advisers acting as defenders in matters of tax offences and so-called new crimes introduced in the Criminal Code on public law obligations (47) with tax advisers specialising in tax law.

The question therefore arises of the scope of the protection of tax advisers cooperating with defenders in criminal proceedings.

It should be noted that tax authorities often initiate criminal proceedings as a financial investigation authority to bring criminal tax charges. Such charges shall often be made after completion or during tax proceedings, tax checks or customs and tax checks (48). It should be stressed that the documentation collected by tax advisers at the stage of acting as a proxy in tax proceedings or tax checks later constitutes documentation concerning possible criminal proceedings in the field of tax offences.

This issue is regulated Article 225(3)(49) K.P.K., we forget very often by prosecutors and tax officials. In accordance with that provision, if the defender or other person (e.g.

tax adviser or person cooperating with a tax adviser and counsellor) who is required to issue the item or to be searched, declares that the documents issued or found in the course of the search of the letter or other documents cover the circumstances relating to the performance of the defence function, the authority carrying out the activities shall leave those documents to the said person without being aware of their content or appearance.

Consequently, law enforcement authorities (50) are not entitled to request the issue and retention of data media held by a tax adviser (51) cooperating with a defense attorney in criminal or criminal tax matters and on which the information covered by the protection secret is recorded (52).

However, if the non-defendant’s statement raises doubts, the executing authority shall transmit those documents in accordance with the rigors specified under Article 225(1) k.p.k. to a court which, after having examined the documents, returns them in whole or in part, in accordance with the rigors laid down in that provision, to the person from whom they were removed or gives a decision to detain them for the purposes of the proceedings.

Professional secrecy of tax advisers in civil, administrative and tax proceedings

There are no exceptions in civil procedures similar to those foreseen in criminal proceedings – none of them equivalent Article 180(2) There are therefore no grounds for dismissal from professional secrecy in civil proceedings. That's right. Article 259 k.p.c. (53), in which there are mentioned entities which cannot be witnessed are not calculated tax advisers, however, the question of their obligation to maintain professional secrecy remains.

Article 261(2) k.p.c. states that a witness has the right to refuse an answer if the testimony is to be combined with a violation of a significant professional secrecy, which is also the duty of tax advisers to maintain. In addition, evidence may be refused to the court to the same extent (Article 248(2) k.p.c.). However, it should be noted that the right to refuse to answer a question is not the same as the right to refuse a statement described under Article 261(1) k.p.c.

In addition, you have to keep in mind the availability Article 37 Act dated 5 July 1996, because this ban also extends to civil proceedings. Therefore, refusal to reply should concern matters relating to tax matters for the client and be relevant to the entrusting secret. The person responsible for assessing the facts is the tax adviser.

In the light of the above, it should be considered whether the reply to:

• does not harm the client in person, property or image,
• does not lead to loss by the trial side,
• is not a breach of professional secrecy. In the end, however, it is up to the court to decide whether, in a particular case, the right to refuse to reply is granted.

There are also no specific provisions on administrative and tax proceedings providing for the possibility of exemption from the obligation of secrecy. However, as in civil proceedings, a tax advisor may be a witness (54) refuse to answer any questions. This has been indicated under Article 83(2) k.p.a. (55) and Article 196(2) Tax Ordinance.

Professional secrecy of tax advisers regarding regulations Act dated 1 March 2018 and information on tax schemes

The issue of exemption from professional secrecy is completely different when it comes to exemptions listed directly In the Act dated 5 July 1996, a on information on tax schemes and regulations Act dated 1 March 2018

Of which first the case concerns the provisions of Chapter 11a Tax Ordinance (56), which entered into force on the day 1 January 2019 (57) They have long been the subject of debates and have caused controversy about the scope of professional secrecy of tax advisers, which have imposed new obligations.

On the basis of the rules in question, the tax adviser, who is also a promoter or a supporter, may be exempted from the obligation of secrecy (58). It also identified situations where the transmission of information is not a secret (59).

Since there is no court case law and no established practice of the Head of KAS, it is now difficult to assess which arrangements are tax schemes and which are not. However, the important issue is that in this case, the beneficiary, usually the customer, decides to release the secret and the tax advisor cannot refuse to accept it.

The only source of knowledge on this subject, in addition to the provisions of the Act, are now the explanations of the Ministry of Finance dated 31 January 2019 (60) It is also worth noting that EU legislation reduces information obligations due to the need for professional secrecy.

However, national legislation does not provide adequate protection mechanisms in this area.

Special attention should therefore be paid to documenting the conditions for exempting the promoter from the obligation of professional secrecy. This will allow the tax advisor to reduce legal risk and to safeguard its own interests.

This will protect him from both the penalties imposed by the tax authorities and possible damages claims by customers. The National Board of Tax Advisors recommends far-reaching care.

She even filed a constitutional complaint with the Constitutional Tribunal to examine compliance with the Constitution of the Republic of Poland Tax Ordinance for reporting tax schemes (61), and consequently with the professional secrecy of tax advisers (62).

Another case is the audit of the General Inspector of Financial Information regarding compliance with the anti-money laundering and terrorist financing rules. According to Article 75 Act dated 1 March 2018 the obligation to provide the information and notices listed in the Act does not apply to institutions obliged to provide information obtained in determining the legal situation of the client in connection with judicial proceedings, to carry out obligations to defend, represent or replace the client in judicial proceedings or to provide legal advice to the client on the initiation of legal proceedings or to avoid such proceedings, regardless of the time of obtaining such information.

At the same time Article 96(1) Act dated 1 March 2018 provides that provisions limiting the provision of information or data covered by professional secrecy, except for classified information within the meaning of the provisions on the protection of classified information, shall not apply to the disclosure of information to the General Financial Information Supervisor in the manner and scope of the Act.

Therefore, Article 37(4) with regard to section 1 Act dated 5 July 1996 the obligation of the tax adviser to keep secret the facts and information he has learned about the pursuit of his profession does not concern information made available under anti-money laundering and terrorist financing legislation.

Under this regulation, the authorities are acting as, in the author's opinion, significant abuses. For example, prosecutors charge suspects with Article 299(1) k.k. (63), i.e. crimes of money laundering.

However, in relation to Article 37(4) Act dated 5 July 1996 law enforcement authorities say that to other procedural actions in a case addressed to persons third or witnesses (researching or demanding the issue of goods and the retention of things) in these cases do not apply regulations concerning the obligation of professional secrecy.

If such a view is accepted (according to the author wrong), the prosecutor is not at all obliged to apply for the repeal of the obligation of professional secrecy, as the rules on professional secrecy do not apply to matters relating to information made available under the anti-money laundering and terrorist financing rules (64).

Professional secrecy as the essence of the profession of public trust

Definitely a professional secret is one of the most important determinants of building public trust. The customers of tax advisers should have complete confidence in the confidentiality of the information provided and in the extent to which it is protected. Therefore one the obligations of the tax adviser are to ensure not only the quality of the services and advice offered, but also to ensure that information on any business or personal situation of the client is subject to the highest protection.

It is worth noting that publications, for example in the professional press, in which the tax adviser's thinking is based, do not, in principle, constitute a breach of this obligation. In that case, however, the full confidentiality of the data and information contained in the publication should be maintained in order to prevent the identification of the subject concerned. It is clear that customer data or other information that may lead to identification must not be disclosed.

The issue of professional secrecy of tax advisers should also be examined in the context of the actual protection of customer information, including possible criminal and criminal liability.

The provisions literally concern the protection of information on the part of the tax advisor and the persons associated with it, not on the part of the client and its employees or associates who have received information from the tax adviser serving that client.

The tax adviser shall determine the scope of the tax advisory service provided and the financial remuneration in a written contract, in accordance with the rules laid down In the Act dated 5 July 1996 And the principles of ethics.

The customer who orders the service shall bear its economic cost. In principle, therefore, it has the right to include such an expense in tax in income tax on the basis of the VAT invoice received from the tax adviser documenting the service provided (65).

The effects of the work of tax advisers are very often transmitted in the form of written opinions or reports, indicating tax risks and criminal and criminal tax threats of actions taken by taxpayers. These documents on the part of tax advisers are protected as professional secrecy.

However, the question arises as to whether the tax authorities may require them to be made available to the taxpayer in order to verify whether the expenditure in question is, for example, linked to the economic activity in question and was incurred in order to obtain revenue and the transaction was not apparent.

It should be noted that in the event of the taxpayer submitting complete opinions or reports prepared by tax advisers to the tax authorities, the taxpayer will be informed of irregularities in its public accounts. In fact, it would be a form of self-denunciation.

It is clear in the author's opinion that such actions would constitute an abuse of the law on the part of tax authorities.

In extreme cases, they could lead to the initiation of controls on all customers of a given tax adviser, which would entail a request for them to transfer any written positions prepared by that tax advisor (in order to obtain information about irregularities in a given client, under the condition that the customer's expenditure on tax advisory service is at the expense of obtaining revenue).

It should be noted that it has already happened that the authorities of the KAS have requested that the tax advisers provide information to their customers, but not from tax advisers themselves (who would most likely rely on professional secrecy), only from customers, subject to fines.

If such a practice were to be considered correct, professional secrecy would become illusory and the client's high confidence in tax advisors would be undermined. In conclusion, the postulate de lege ferenda should be formulated.

Namely, it should be possible for a tax adviser to act as a defense counsel in fiscal and criminal criminal matters concerning public law obligations.

Even today, a team of lawyers, legal advisers and tax advisers represents the client in proceedings concerning tax and criminal liability in cases which have arisen in tax and judicial proceedings in the field of tax law.

Footnotes

1 Uniform text Journal of Laws of 2021, item 1128 as amended, Next: Act dated 26 July 1991

2 Uniform text Journal of Laws of 2021, item 1800 as amended, Next: Act dated 15 February 1992

3 Uniform text Journal of Laws of 2021, item 2117, Next: Act dated 5 July 1996

4 Legal ethics. Basic issues, S. Sykuna (ed.), Warsaw 2019.

5 Journal of Laws, item 483 as amended, Further: Constitution of the Republic of Poland. Article 17(1): „Through the Act, professional self-governments can be created, representing those who exercise public trust and care about the proper performance of these professions within the limits of the public interest and for the protection of them."

6 Judgment of the SN dated 29 May 2001, CKN 1217/98, http://www.sn.pl/sites/orzecznictwo/orzeczenia1/i%20ckn%201217-98.pdf, access: 31 March 2022.

7 E. Gierach, Access to the exercise of the legal professions of public confidence in the light of the case law of the Constitutional Court, ‘BAS Legal Accounts’ 2009, No 3-4.

8 M. Zdyb, Secret of professional tax advisor. Information brochure for tax advisors. Development on behalf of the National Board of Tax Advisors, Mazovia Branch of the National Chamber of Tax Advisors, October 2021.

9 Lt. P. Sarnecki, Comment to Article 17, in: Constitution of the Republic of Poland. Commentary, L. Garlicki (ed.), t. 4, Warsaw 2005, and the same, the concept of the profession of public trust (Article 17(1) Constitution) on the example of barrister, in: Constitution. Elections. Parliament. Studies donated to Zdzisław Jarosz, L. Garlicki (ed.), Warsaw 2000.

10 Cf. TK: 1) dated 7 May 2002, SK 20/00, https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=2&dokument=1351&sprawa=3359, access: 31 March 2022; 2) dated 21 May 2002, K 30/01, https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=3&dokument=458&sprawa=2689, access: 31 March 2022; 3) dated 2 July 2007, K 41/05, https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=4&dokument=305&sprawa=4309, access: 31 March 2022.

12 Mr Szewczyk, Secret of Tax Advisor, "Law Monitor" 2015, No 17.

13 Ethics for tax advisors. Practical commentary, jurisprudence, facts, A. Marianski (ed.), Warsaw 2020.

14 Resolution No Regulation (EU) 36/2018 dated 13 January 2018 V of the National Tax Advisors Meeting on Professional Confidentiality, https://kidp.pl/strona/2528_uchwala_nr_362018_v_krajowego_zjazdu_doradcow_podatkowych_w_sprawie_tajemnicy_zawodowej, access: 31 March 2022.

15 Order of the SN dated 15 November 2012, SDI 32/12, http://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/sdi%2032-12.docx.html, access: 31 March 2022: „[…] The professional secrecy of the legal adviser, including everything he has learned in connection with the provision of legal advice and the conduct of the case, excludes the possibility for him to testify as a witness in criminal proceedings where the party is a person previously represented by him in other proceedings, without prior release from the above secrecy by the court in a specified manner under Article 180(2) k.p.k. [Act dated 6 June 1997 – Code of Criminal Procedure, Uniform text Journal of Laws of 2021, item 534 as amended, Further: ‘Code of Criminal Procedure’ or ‘K.p.k.’ – ed.], also if he was to testify at the request of his client and in his interest regarding circumstances which were the subject of open proceedings by the court in cases other than criminal matters, and even more so if it concerned the circumstances of the negotiations between the parties to those proceedings and their relations.’ National Board of Tax Advisors, Application to examine compliance of the Act with the Constitution of Poland, Warsaw, 17 December 2019, K 13/20 (case pending), https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=4&sprawa=23173, access: 31 March 2022: „It should therefore be considered that professional secrecy functions in the public interest as an essential element in the proper exercise of the profession of public confidence (not in the interests of a client who, not by exempting an adviser from professional secrecy but by exercising constitutional rights of defence and providing explanations, may disclose confidential information entrusted to a tax adviser".

17 D. Walerjan, Obligation to Report Tax Schemes (MDR) – Selected Problems, Insurance Law 2019, No 3.

18 M.in. Article 86b(4) Act dated 29 August 1997 – Tax Ordinance (Single text Journal of Laws of 2021, item 1540 as amended, Next: Tax Ordinance).

1) made available under anti-money laundering and terrorist financing rules,

1. transferred under Chapter 11a of Chapter III Act dated 29 August 1997 – Tax Ordinance – to the extent specified in those provisions.’

21 Currently, units are not required to forward separately in the form of paper accounts to the tax office. The financial statements are available to KAS units in electronic form through an electronic register maintained by the KRS.

22 Relevant provisions Act dated 10 September 1999 – Tax Penal Code (codification) Journal of Laws of 2021, item 408, The following shall apply:

• 23 It is subject to fiscal penalty and tax liability (e.g. additional tax liability).
• 24 Criminal liability provisions In the Act dated 29 September 1994 on accounting (codification Journal of Laws of 2021, item 217 as amended, Next: Act dated 29 September 1994).
• 25 New criminal offences, so-called invoice offences, regulated, among others. Under Article 270a, 271a and 277a Act dated 6 June 1997 – Criminal Code (codification) Journal of Laws of 2021, item 2345 as amended, hereinafter ‘Final Code’ or ‘K.k.’).

26 There are abuses on the part of the tax authorities, by demanding customers (tax collectors) to provide tax advisers with advice and reports in order to confirm that they are providing services to these taxpayers.

The justification for such a request from the KAS authorities is supposed to be the alleged willingness to verify whether the tax advisor actually provided an intangible service to that customer.

In this case, the tax authorities claim that the professional secrecy does not apply to the client itself (the taxpayer), and it is he who is asked by the KAS, not the tax advisor.

An absolute abuse on the part of the KAS authorities is to seek confidential information from correspondence (opinions, reports) between the tax advisor and the client, which very often contains information on irregularities in public accounts or even information on tax criminal offences.

The authorities justify such action by checking whether the customer's expenditure is linked to the preservation or safeguarding of the source of income (whether it is the tax cost) and whether it is related to the customer's VAT transactions (whether the invoice provides the basis for deduction of the input tax shown in a document issued by the tax adviser to the customer).

27 Judgment of the District Court (SR) for Warsaw-Mokotów in Warsaw dated 22 October 2018, XIV K 351/16, http://orzeczenia.mokotow.warszawa.so.gov.pl/content/$N/154505200007006_XIV_K_000351_2016_Uz_2018-10-22_002, access: 31 March 2022: „The court, as a body upholding the rule of law in a democratic state of law, considering that this secret constitutes the essence of the profession of legal adviser (or lawyer), must be a guarantee of maintaining both the appropriate form of action and the substantive justification for exempting the duty of conduct of the person on whom such an obligation is imposed (as the case may be, the ruling of the Court of Appeal in Łódź from dn.

5 April 2018 o reference no. II AKz 155/18, SOUND Directive 2018/1/81).

When deciding whether or not to exempt a witness from the obligation of attorney-client privilege (or legal adviser), it should not be forgotten that those performing the profession are part of the judiciary, and their role and function is to conduct cases and provide advisory services in such a way as to prevent the client from taking action or carrying out acts that could harm him or lead to a violation of the law.

Social importance of the profession of lawyer and specific nature Article 180(2) kpk, which introduces an exception to the principle of professional secrecy by a lawyer, means that this provision should be applied carefully by the court and that the conditions for exemption from the obligation of secrecy should be interpreted strictly and cannot be subject to an extension interpretation (see the order of the Court of Appeal of Krakow of the day).

6 February 2018 o reference no. II AKz 3/18, LEX No. 2566592).

Consequently, a person obliged to keep a lawyer secret may be heard about the facts covered by that secret, but only if it is necessary for the sake of the justice system and the particular circumstance cannot be established on the basis of other evidence (see the order of the Court of Appeal in Katowice from dn.

17 February 2016 o reference no. II AKz 64/15, LEX No. 2100203)”.

28 The importance of the professional secrecy of the tax adviser is borne out by the fact that it was directly included in the vow: “I swear that as a tax adviser, I will perform this profession in the interests of my clients, with all diligence and integrity, in accordance with law, knowledge and principles of professional ethics. I will keep the facts and information known in connection with the pursuit of the profession confidential to persons third” (Article 8(2) Act dated 5 July 1996).

30 The term ‘persons employed by a tax adviser’ means any person working or cooperating with a tax adviser on the basis of any legal relationship (employment contract, civil law contract – contract of order or contract of work, cooperation agreement between entrepreneurs).

31 Judgment of the Provincial Administrative Court (WSA) in Wrocław dated 17 March 2020, I SA/Wr 862/19, https://orzeczenia.nsa.gov.pl/doc/78C0668A45, access: 31 March 2021: „Hearing of a tax adviser in the framework of a tax proceeding on the circumstances indicated under Article 37(1) U.d.p. [i.e.

Act dated 5 July 1996 – ed.] can therefore only occur after the tax advisor has been exempted from the obligation of professional secrecy in a manner determined by separate laws. Regulations Tax Ordinance in fact, there is no procedure for such exemption for tax proceedings. This procedure is not instruction, in mode Article 196(2) O.p.

[i.e. Tax Ordinance – ed.], witness – tax adviser before questioning the possibility of refusing to answer questions, if such an answer could lead, inter alia, to a breach of the obligation to maintain statutoryly protected professional secrecy’.

33 Order of the Court of Appeal (SA) in Kraków dated 24 May 2016, II AKz 159/16, „Prosecutor’s Office and Law’ 2017, No 1, the additive ‘Courage’ item 41: „The investigation strategy must not justify waiving the application of statutory conditions for breach of professional secrecy.

The absence of release does not prevent the procedural safeguard of evidence. It is not appropriate to suggest to the applicant that the refusal to take account of his application (to repeal the secrecy of the tax adviser) will result in the loss of evidence and inability to conduct the proceedings correctly.

In particular, appropriate evidence should be used, and only if suspects or witnesses refuse to testify or explain will this open the way to another request for dismissal from professional secrecy. Without these possibilities, the proposal is premature".

35 Uniform text Journal of Laws of 2022, item 593, Next: Act dated 1 March 2018

36 M. Bazylczuk, Anti-money laundering and terrorist financing – selected issues, “Tax Monitor” 2019, No 10.

37 E.g. Article 96(1) Act dated 1 March 2018: „The provisions limiting the provision of confidential information or data shall not apply to the disclosure to the General Inspector in the manner and extent provided for by the Act, except for classified information within the meaning of the provisions on the protection of classified information.’

38 Order SA in Katowice dated 17 February 2016, II AKz 64/16, „Prosecutor’s Office and Law’ 2016, No 11, the additive ‘Courage’ item 39: „From the wording of the recipe Article 180(2) It follows that an exemption from the confidentiality of a legal adviser can only take place if they are met cumulatively two the conditions linked to each other, namely, where this is necessary for the sake of the justice system and the fact in which the exemption took place, cannot be established on the basis of other evidence.

It is an absolute duty of the applicant prosecutor to exempt a lawyer from his/her confidentiality to show in detail the existence of the abovementioned two premises.

The obligation of professional secrecy by a legal adviser, whether a lawyer is of an absolute nature, hence the prosecutor's request to make the breach in this principle cannot be treated as a mere formality and limited to, in most cases, the repetition of statutory expressions, and not yet complete.

The reasons for such a request must be carefully substantiated, with appropriate reference to the evidence of the case file. Only such a request can be assessed by the court so that the decision taken is fully supported by both the legislation in force and the evidence of the case.’

39 Among other things, this article also refers to Article 113(1) k.k.s.

40 Order of the SN dated 19 May 2020, I KZ 8/20, OSNKW 2020, No. 8, item 31.

41 Order SA in Krakow dated 21 April 2010, II AKz 129/10, „Krakow Judicial Books” 2010, No 5, item 36: „The exemption from professional secrecy of a lawyer should concern specific circumstances of which the witness is to testify.

It is for the court to determine whether these circumstances meet the requirements Article 180(2) This is necessary for justice and cannot be determined on the basis of other evidence.

Their lack of designation would make it possible to exempt carte blanche for law enforcement authorities that could benefit freely from the witness's knowledge by circumventing the relevant restrictions."

42 Order SA in Krakow dated 19 March 2009, II AKz 64/09, „Krakow Judicial Books” 2009, No 4, item 35: „1. Social significance of the professions covered by the provision Article 180(2) K.p.k., including the profession of lawyer, makes the decision to exempt from professional secrecy not to be treated as a formality.

The client's trust in a lawyer, which determines the proper performance of the attorney's tasks, is a great value, whose violation is the price for achieving justice that would not have been achieved without it.

Both of these conditions should be based on an assessment of the facts of the case and must not result from an arbitrary assessment which is not instantially controlled. 2. The scope of the circumstances covered by the exemption should be clearly indicated.

A general definition of the scope of the exemption would mean that the exemption would not apply to specific circumstances but would be carte blanche for any use by investigative authorities of the repeal of professional secrecy.’

43 Appendix to Resolution No Regulation (EU) 12/2022 National Tax Advisory Board dated 14 February 2022 on the adoption of a single text on the principles of tax advisor ethics, https://kidp.pl/strona.php/1541_zasady_etyki_doradcow_podatkowych.html, access: 1 April 2022.

44 Order SA in Szczecin dated 29 October 2013, II AKz 330/13, https://izba-adwokacka.szczecin.pl/wp-content/uploads/2021/05/20131029-Postanowienie-SA-w-Szczecinie_II-AKz--330-13-ochrona-tajemnicy-adwokackiej.pdf, access: 1 April 2022. see ECHR judgments: dated 3 July 2012 on 30457/06 Robathin v. Austria, https://hudoc.echr.coe.int/eng?i=001-111890(wer.ang.), access: 1 April 2022; dated 27 September 2005 on 50882/99 The President https://hudoc.echr.coe.int/eng?i=001-70283(wer.ang.), access: 1 April 2022.

45 It may be that the Prosecutor overridingly accepts the activities of the Prosecutor conducting the investigation with regard to entities third, even if they are very far-reaching, discreet, often beyond the framework of the Code of Criminal Procedure.

46 It needs to be considered, in particular in the de lege ferenda aspect, the procedure for filing a complaint against the prosecutor's decision to search and request the issue of the items to court through the prosecutor conducting the proceedings.

This prosecutor should “not immediately” refer the complaint to the court with his position on the case, but sometimes it is necessary to wait for it for a dozen or even a few dozen months (without any justification).

Consequently, the tax adviser may be deprived of the technical resources necessary to provide tax advice for a long period of time.

47 E.g. Article 271a(277a) k.k.

48 The author omits the abuse of the law by the KAS authorities of imposing criminal tax charges on suspects only in order to interrupt the limitation period of the tax obligation (residency). This problem has been raised many times in doctrine and judicature, see: 1) NSA resolution dated 24 May 2021, And FPS 1/21, https://orzeczenia.nsa.gov.pl/doc/2A0AA77DCD, access: 1 April 2022; 2) WSA judgment in Kraków dated 24 March 2021, I SA/Kr 1252/20, https://orzeczenia.nsa.gov.pl/doc/ADECF090BB, access: 1 April 2022; 3) NSA judgment dated 30 July 2020, I FSK 128/20, https://orzeczenia.nsa.gov.pl/doc/650ACA64B5, access: 1 April 2022; 4) NSA resolution dated 18 March 2019, And FPS 3/18, https://orzeczenia.nsa.gov.pl/doc/AC08056B52, access: 1 April 2022.

50 D. Szczygieł, Position of tax advisor to judicial authorities, ‘Iustitia’ 2014, No 3.

51 Mr Kołodziejski, Professional Mystery of Tax Advisors in Criminal Procedure, “Prosecution and Law” 2013, No 1.

52 M. Błoński, M. Armoured, Evidence and Evidence in Criminal Trials. Practical comment with case law. Models of procedural documents, Warsaw 2021.

53 Act dated 17 November 1964 – Civil Code of Conduct, Uniform text Journal of Laws of 2021, item 1805 as amended, hereinafter: ‘Code of Civil Procedure’ or ‘k.p.c.’.

54 K. Janczukowicz, Exemption of tax adviser as a witness from the obligation of professional secrecy, n.ius, 17 June 2020

55 Act dated 14 June 1960 – Code of administrative procedure, uniform text Journal of Laws of 2021, item 735 as amended, hereinafter: ‘Administrative Procedure Code’ or ‘k.p.a’.

56 Comment on the bill – Tax Ordinance. Division III Chapter 11A. Information on tax schemes, W. Modzelewski (ed.), Warsaw 2019.

57 Act dated 23 October 2018 the amendment of the Personal Income Tax Act, the Corporate Income Tax Act, the Act – Tax Ordinance and some other laws, Journal of Laws, item 2193.

60 Ministry of Finance, Tax explanations dated 31 January 2019 Information on tax schemes (MDRs), https://www.podatki.gov.pl/media/4417/obja%C5%9Bnienia-podatkowe-mdr-z-dnia-31-01-2019.pdf, access: 1 April 2022.

61 On 17 December 2019 The National Board of Tax Advisors adopted a resolution on the referral of a constitutional complaint, and In January 2020 applied to TK.

The proposal alleged non-compliance with the provisions on reporting tax schemes with the Constitution of Poland (Article 2 and Article 17(1) with regard to Article 31(3), Article 47, Article 49, Article 51(2), Article 58(1)), but also with Article 6(1) Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, as amended by Protocols Nos.

3, 5 and 8 and supplemented by Protocol No. 2 (Journal of Laws of 1993, item 284). In the Council's view, the possibility of exempting a tax adviser from the obligation of professional secrecy is incompatible with the principles of the functioning of the profession of public trust, which is the profession of tax adviser.

The self-government also disagrees with the method and form of introducing the contested provisions and considers that they are ambiguous and that their interpretation and application are therefore difficult.

Moreover, the obligations resulting from these arrangements are disproportionate to the objectives of the Directive 2018/822 dated 25 May 2018 amending Directive 2011/16 on mandatory automatic exchange of information in the field of taxation in relation to cross-border arrangements to be notified (Official Journal of the European Union L, No.

139 to 5 June 2018, p. 1; so-called DAC Directive[6]). see National Board of Tax Advisors, Application to examine compliance of the Act with the Constitution of Poland, Warsaw, 17 December 2019, Doc. cit.

62 Position of the National Tax Advisory Board dated 17 September 2019 concerning the dismissal of tax advisers from professional secrecy, https://sip.lex.pl/akty-prawne/akty-korporacyjne/zwalnianie-doradcow-podatkowych-z-tajemnicy-zawodowej-287346500, access: 1 April 2022. Resolution No Regulation (EU) 134/2019 Bureau of the Chief Bar Council dated 29 October 2019 on support for the position of the National Board of Tax Advisors of 17 September this year concerning the exemption of tax advisers from professional secrecy, http://www.nra.pl/admin/wgrane_dokumenty/uchwala-nr-1342019doradcypodatkowi.pdf, access: 1 April 2022.

64 According to the author, this application is incorrect. Exemption from Article 37(4) Act dated 5 July 1996 relates to information collected by the tax adviser, inter alia, on the identification of the actual beneficiary of the transaction operated by the tax adviser, rather than the documents obtained by the tax adviser in connection with the provision of tax advisory services (accounting documents, accounts and tax records).

65 Expenditure incurred in order to obtain income or to preserve or secure the source of revenue, for economic operators (e.g. Article 15(1) Act dated 15 February 1992).

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Author:

Dr. Andrzej Dmowski. Managing Partner in charge of Legal Department. From 2011 performs the function one from Managing Partners in the Group Russell Bedford Poland and a member of the Assembly of Directors Russell Bedford International - consulting companies operating in more than 100 countries around the world. Doctor of Legal Sciences at the University of Warsaw.

The article comes from the newsletter Tax Advice on the occasion 25-year anniversary Tax advisory laws Institute of Tax Studies, Modzelewski and Associates, April 2022