Legal forms of anti-circumvention

The obligation to pay taxes derives from Article 84(168)(217) Constitution of the Republic of Poland dated 2 April 1997 [1] (Next: Constitution), what constitutes one from sources of tax law.

Its character is the absence of direct mutual benefit from the State (including local government units), the statutory basis for the formation of the tax, and a group of passive entities which depends on the will of the legislator (tax collectors).

This last one means that the fulfilment of the conditions laid down in the Act by the entity concerned will entail the formation of a tax obligation, thus making the entity a taxable person.

The problem is whether the tax structure, including the level of tax rates, established by the legislative authority will benefit both the State and the entities in the country. Will the taxpayer be aware of his tax obligation? They're confronting here.

three conflicting interests: individual, social and state, as well as law with economics. The more different tax obligations, the greater the risk of debt and taxpayer unawareness.

This may be why taxpayers seek not to comply with the cash benefits arising from the Act in favour of a State which is of a compulsory, unpaid and non-refundable nature.

What is tax evasion?

first an attempt to regulate an institution which would enforce the obligation to pay taxes was to circumvent tax law [2] of Article 24b Tax Ordinance (Next: Or. pod.) [3] . It was quite an imprecise possibility for tax authorities and tax control to interfere in legal relations, with the exception of the tax effects of legal acts.

Article 24b(1) or. under.

provided that the tax authorities and tax control, when settling tax matters, would disregard the tax effects of legal acts if they proved that the performance of those activities could not be expected to have other significant advantages than the reduction in the amount of the tax liability, the increase in the loss, the increase in the excess or reimbursement of the tax.

According to section 2 the said Article if the parties, when carrying out the legal act in question Under section 1, have achieved the intended economic result for which another legal act or act is appropriate, the tax consequences shall derive from that other legal act or act.

The legal structure of the tax evasion is shown in the figure 1.

Figure 1. Construction Article 24b or. pod.

Source: own development.

The following problems need to be considered: what legal activities are being addressed; whether tax authorities can assess taxable persons' activities; what are the differences between tax circumvention and tax optimization, the benefit and the economic result; how can it be demonstrated exactly what causes the omission of tax effects (or whether this is tantamount to nullification); how to separate the legal activity from the economic result.

With reference to first The question is seen in the doctrine [4] compliance that it is a civil legal act. The exception is the position of M. Slifirczyk [5] , which notes that most taxes are linked to them, but that economic and non-economic contracts should also be included. However, it does not specify what is meant by non-commercial contracts. Perhaps this is about unnamed contracts (unregulated), i.e., factoring, franchising, lease-back.

Highlighted words in the picture 1 serve to pay special attention. The provision applies the general clause, which is an important benefit. A contrario can be concluded that, if the benefit is irrelevant, the authorities should not undertake such a case.

Not only this but also under-defined concepts such as reducing tax liabilities, increasing losses, increasing overpayments or tax reimbursement will be a danger. The tax authority itself will determine when and whether these conditions have occurred. The basis may be one or more legal acts.

Many effects of the taxpayer's action have been identified, with no definition of them and no procedures for tax authorities or tax control. This is detrimental to both the taxpayer and the body.

The taxpayer will not know when the authority will not exceed its powers and the authority, when the taxpayer will comply with the conditions of the provision in question.

Tax law should not give rise to a situation where the provision has so harsh concepts that it can lead to too many abuses on both sides – especially since the authorities are in a privileged position because they are in their own interest (State Treasury) and have the opportunity to shape the legal situation of the taxpayer.

It would seem that this provision is of great benefit to them if tax authorities and tax control authorities do not correspond to the significant benefit or economic result achieved by taxpayers.

On the other hand, bodies should act in the name and on behalf of the public and within the limits of the law. It seems reasonable to refer to the legendary case of Optimus (later converted to Group) ONET.pl S.A. and CD Project, which demonstrates the danger of abuse of power by tax authorities.

The company used its branch in Slovakia and sold computers through it to schools and research facilities. It did not pay the tax on goods and services because of the statutory tax rate 0%. This raised doubt on the authorities that raised the allegation of circumvention of tax law.

In ruling on this matter, the Chief Administrative Court (hereinafter NSA) [6] indicated that Article 24b(1) or. pod. entered into force only on the day 1 January 2003, The plea was therefore unfounded and the regulation itself was challenged by the Ombudsman and the President of the NSA.

It is worth noting that the judgment in question referred only to national law because Poland was not yet a member of the European Union (which changed 1 May 2004).

Surely, circumvention of tax law is intended to obtain an economic advantage. Such actions of the taxable person may occur irrespective of the intention to apply circumvention of tax law. First of all, because the taxpayer can benefit from a wide range of civil contracts, tax rates and thus can lead to tax savings (more about this in the following section).

By Article 24b(1) or.

under which each time the tax authorities and the tax control are to determine the facts, the wording of the parties' statements, their intention and purpose of the contracts, and then assess the legality of the activities of the passive entities (or taxpayers), the value of the benefits achieved, the effects of the legal acts and the tax consequences of those activities.

This seems to be too wide a range of tasks for the authorities at one regulation.

Minister for Finance [7] pointed out the issue of tax decisions in both the factual and legal justification, at the same time, he alleged that "In the assessment of this participant, the principle of freedom of economic activity must not prevail over the principle of equal taxation (Article 84 Constitution) and the statutory source of tax obligation (Article 217 Constitution)’.

He thus pointed out which business should be more important. The Roman parema nemo iudex in causa sua should be recalled here, meaning “no one can be a judge in his case”. It should not be that the same authorities verify their decisions on the taxpayer, as the legal availability of the taxpayer is thus limited.

On 11 May 2004 Constitutional Court (hereinafter: Constitutional Tribunal) ruled [8] unconstitutional Article 24b(1) or. under. Article 2(22) Constitutions (they concern the principles of citizens' trust in the state, legal certainty and economic freedom). After first it is concluded that both paragraphs contained under Article 24b or.

under. separate because it is not possible to meet them simultaneously. This is difficult to agree with, as the economic result (section 2) may be wider than the benefit in question Under section 1.

However, Under section 1 the closed catalogue has not been included and the economic result does not contain a legal definition, so there is a high risk of blurring differences. The CCC also pointed out the problem of making an appropriate assessment, since the regulation of this article goes beyond the scope of Tax Ordinance.

In a separate sentence to the judgment, a legitimate request was made for the integral treatment of the whole of the article, which proved to be legitimate, due to the subsequent repeal section 2 or. pod.

The introduction of circumvention of tax law could indicate that civil tax law is being self-allocated because the authorities would not be entitled to raise legal institutions such as appearance, error, distortion of a statement of will or deception. Based on content Article 24b The link between these branches of law has been further strengthened by placing emphasis on the analysis of legal activities (including civil law), the related benefits, economic outcomes and consequences of these activities.

Short and aptly formulated by Ł. Karczyński [9] an assessment of the defect in the circumvention of tax law. Tax law contains not only injunctions but also systemic, procedural and material standards that could be circumvented. The mere designation of this legal standard to circumvent tax law is incorrect.

According to the Polish Dictionary [10] distinguishes three the terms ‘circumvention’, ‘circumvention’ and ‘circulation’. two first They're related to traffic, i.e. bypass, lap. Only the "turnover" could identify the meaning of the largo with the repealed regulation.

This means “to do without someone or without something”, “to be content with a small amount of something” or “to use something or to use something.” It therefore appears that the correct wording is "abuse of the law" (contained under Article 53 Act dated 23 April 1964 — Civil Code [11] ; (c) and ‘avoidance of taxation’, as further explained in the article.

Finally, it is worth drawing lessons from the mistakes and asking for the wording of the next clause, similar to the tax circumvention, which should:

• • comply with the Constitution,
• • implement the principles of tax law,
• • depend on objective, specified, verifiable criteria,
• • not focus on the benefits of taxpayers obtained and compliance with tax law;
• • equalising the rights of the taxpayer and the body in the case,
• • contain a clear and specific sanction,
• • prevent an increase in the number of regulations on trade [12] .

If all these conditions were met, it would be possible to avoid the extreme actions of taxpayers and tax authorities (which is today called the National Tax Administration).

2.1. Obviction of tax law with other tax infringements

To this day, the legislator has not written down all possible concepts relating to the form of infringement by the taxpayer, such as "tax holidays", "tax evasion", tax savings, tax optimization, tax loss, tax planning or tax jurisdiction limitation.

The problem is that they are partly borrowed from common language and do not set precise conceptual boundaries, and therefore it is difficult to establish a uniform definition, especially for bodies. However, some forms of anti-circumvention have been legally regulated.

The following part of the article will consider: tax avoidance, tax evasion, tax planning and the attempt to define tax optimization and tax savings.

2.2. Tax avoidance

After repeal Article 24b Or. under. formally there was no circumvention of tax law.

Judicial doctrine based on six conditions: the activity of the taxpayer, its association with another entity, the purpose of the action, the artificiality of the actions taken, the existence of a certain tax effect (advantage) and the schematicity of the occurrence of the activity (defined by M. Slifirczyk as an element of time) [13] .

In 2012 The European Commission has introduced a recommendation on aggressive tax planning [14] concerning the prevention of the use of technical aspects of the tax system or of differences between two tax systems or more to reduce the tax liability.

Especially important point 4.2 proposing the content of regulations for Member States, including the Republic of Poland. In 2015 There was a draft tax avoidance clause for or under, but this was not without media criticism and the establishment of the Codification Commission for General Tax Law.

On 13 May 2015 passed the Act amending the Act — Tax Ordinance and some other laws [15] , which introduces a tax avoidance clause.

Its content has not survived intact until today because it has influenced it yet Directive 2016/1164 to 12 July 2016 laying down rules to counter tax avoidance practices which directly affect the functioning of the internal market [16] (further: the ATAD Directive, to counter the erosion of the tax base and the transfer of profits.

It was pointed out that discouraging tax avoidance is intended to combat tax abuse and fill tax gaps, separating the freedom to choose tax qualifications, the uniformity of application of general rules and the improvement of the efficiency of business.

Currently, or under the heading includes section IIIA (to prevent tax avoidance), including five Chapters: anti-tax avoidance clause, tax proceedings in the event of tax avoidance, Anti-tax avoidance Council, safeguard opinions and withdrawal of the effects of tax avoidance. These include Article 119a-119zfn.

Material law for tax avoidance under Article 199a(1) or. under. This is the ineffectiveness of the tax advantage obtained, which is contrary in the circumstances to the object or purpose of the tax law or its provision.

After the amendment [17] It is clarified that this benefit is to be the principal or one of the main objectives of achieving (Article 199a(1)), taking into account the economic objectives of the activities identified by the party (Article 119d.).

The way a taxpayer acts should be artificial, and a set of related activities carried out by the same or different entities are also understood as being carried out (Article 119f).

The tax effects of the benefit can be assessed on three methods, regulated successively under Article 119a(2-4)(5)(6) or. pod. po first: the tax consequences of the activity shall be determined on the basis of the state of affairs which might arise if appropriate action were carried out.

An act that an entity could, in the circumstances in question, carry out if it acted reasonably and was guided by legitimate objectives other than to obtain a tax advantage contrary to the object or purpose of the tax law or its provision, and the way in which it acted would not be artificial is considered appropriate.

Appropriate action may also consist in failure to act. If an appropriate action is demonstrated, it will have tax consequences.

After second, if the circumstances indicate that the tax advantage was the sole purpose of the activity in question Under section 1, in such a situation, the tax consequences are determined on the basis of the state of affairs which would have occurred if the operations had not been carried out.

After third, if the tax advantage has been achieved as a result of the activity in question Under section 1, as a result of the application of a provision of the tax law specifying the conditions for granting an exemption from the tax base, including the exclusion of income from taxation, or the deduction from income, income or tax, the tax effects are determined on the basis of the legal status which would exist if the provision of the tax law had not applied.

These conditions lead to the elimination of differences between tax effects and tax benefits. The legislator uses these terms interchangeably. Indeterminate, subjective and out of focus phrases were also used. As a result, the ruling on similar tax matters may result in a disunity.

The tax avoidance clause shall not apply to: an entity that has received a hedging opinion, within the scope of the opinion, until the date of notification of the revocation or amendment of the hedging opinion; an entity that has concluded a tax agreement in respect of the non-proprietary application Article 119a(1), between the Head of the National Tax Administration and the taxable person party to the interoperability agreement; the entity which is party to the investment agreement concluded, in part concerning Article 20zt(2) — to the extent covered by this Agreement and to the tax on goods and services and to fees and non-tax budgetary charges.

This exemption is assessed as misunderstanding of the tax avoidance clause [18] . With tax on goods and services Act dated 11 March 2004 on tax on goods and services [19] under Article 5(5) indicates an abuse of law, so the legislator's probable intention is to avoid the superfluum (repeal) of the statutory.

Another problem is the lack of an obligation for the authorities to assess the application, whether there is a condition from Article 199b or. under which it could streamline and shorten the determination of whether the taxpayer has avoided taxation, so that the NSA would not have to rule the same repeatedly [20] .

A taxable person’s conduct is not artificial if, on the basis of existing circumstances, it must be assumed that a person acting reasonably and legitimately would apply that method to the greatest extent for legitimate economic reasons.

For example, the artificial mode of action will indicate: unjustified division of operations, involvement of intermediaries despite lack of economic or economic justification or pre-tax profit, which is negligible compared to the tax advantage, which is not directly due to the economic loss actually incurred.

It does not fall under this category of objective to achieve a tax advantage contrary to the object or purpose of the tax law or its provision.

The current wording of the definition of tax avoidance continues to give rise to doubts, in particular when it comes to achieving the advantage of conflicting with the objective of the tax law or its provision, which is nothing other than the non-imposition of tax. M.

Kurzac rightly perceives the dichotom of legal institutions — something may be allowed or not allowed, and tax avoidance is a borderline concept because it sanctiones tax advantage. A. Ladziński believes that the changes introduced are back to the past.

The question arises whether the current clause is in line with the Constitution and whether it does not implement the ATAD directive too widely. According to G. Kujawski, the tax evasion corresponds to tax avoidance. It sees the current clause in force as a more specific standard for the repealed.

It alternately uses these concepts, although it indicates the unconstitutionality of circumventing tax law and the different legal bases. The truth is that they are not identical, which is distinguished in the table 1.

Table 1. Comparison of tax avoidance and circumvention

Tax evasion

Avoidance of taxation (after 2019)

Legal basis

Article 24b or. pod.

Article 199a n. or. pod.

Rulers

tax authorities and tax authorities

tax authorities, Head of National Tax Administration

Reasoning entity

tax authorities and tax authorities

Anti-Taxation Avoidance Board (independent body)

Advantage

important (see some examples in the article)

Tax

Penalties

omission of tax effects

ineffectiveness of the tax advantage achieved

Proceedings of the taxpayer

inappropriate legal action

artificial mode of action contrary to the objective or subject matter of the tax law

Legal status

Repealed — Non-compliance with the Constitution

applicable

Source: own development.

2.3. Tax evasion

Tax evasion is regulated under Article 54 Act dated 10 September 1999 — Tax Penal Code [21] (Next: k.k.s.). It means a prohibited act, which is not to comply with the obligation to pay taxes. The following offences have been highlighted (section 1), privileged type of crime (section 2) and fiscal misdemeanour (section 3).

first the taxable person does not disclose to the competent authority the subject matter of the tax base or makes declarations, thereby reducing the tax. This action or omission understates or even eliminates the tax debt.

In this case, the taxable person shall be fined until 720 the daily units or penalties for imprisonment, or both, together. However, the sanction will be limited to fines only if the amount of tax exposed to depletion is low.

In this case, we are dealing with less social harm, mitigating circumstances and other types of violated legal goods, which is why the legislature restricts sanctions to one of a kind.

If the amount of tax exposed to depletion does not exceed the statutory threshold, the perpetrator of a specific prohibited act Under section 1 is fined for fiscal misdemeanour.

The limit of this sanction should be derived from Article 53(3) k.k.s., which sets a maximum of five times the minimum wage (according to the current regulation) [22] In 2022 minimum remuneration 3,010 PLN, So after multiplying by five fine limit for fiscal misdemeanour is going to be 15,050 PLN).

Tax evasion is characterised by concealing, not disclosing activities carried out by a taxpayer or legal occurrences because the taxpayer is aware of the tax consequences. This is illegal because it deliberately tries not to comply with the constitutional and statutory obligations. Actions prohibited on this legal basis may be: tax fraud, giving false information to authorities, forgery of documents, forgery of books [23] .

2.4. Tax planning

Tax planning by the taxpayer is included in the European Commission’s Recommendation Under point 1. This was considered to be an allowed practice which reduces tax obligations through strictly legal solutions. Planning is to select activities contributing to the reduction of cash benefits. According to J.

Jankowski [24] This must not result in a lack of economic activity. The taxpayer in tax planning should be faced with the ineffectiveness of his actions and with tax consequences, so he accepts the risk that his actions may prove ineffective.

2.5. Unregulated changes in tax qualifications

According to J. Jankowski [25] Tax advisors started using the concept of tax optimization. This is not a statutory term. This is a broad issue that is not defined uniformly in doctrine, although the lawfulness of this action is unanimously stressed.

It is indicated by, among other things, the implementation of a specific economic result, the use of a number of business organisations and tax gaps, or the choice of legal acts or tax policy instruments to minimise the tax burden. Legal activity involving taxation will be one possible, but with the lowest tax rate.

The action of the taxpayer is public and accepted by the authorities.

Tax saving is an intentional act or omission of the taxpayer to reduce the tax burden. A practical example is the purchase of smaller properties, which leads to a reduction in the tax rate. In this case, neither legality nor non-compliance with the objective of the tax law can be undermined. The taxpayer is not obliged to carry out activities which would benefit from the State. It has the right to take such measures as will contribute to reducing the tax rate.

2.6. Summary

The following table provides a brief comparison of the infringements of tax law in terms of the legal basis, the legality of the activities of the taxpayer, the intention of the legislator and provides examples of facts that are based on case law.

Table 2. Institutions modifying tax qualifications — summary

Legal basis

Legality of actions

taxpayer

The intention of the legislator

Examples

Tax evasion

repealed

(Article 24b or. pod.)

Yes

Yes

legal activities (at least two) + achieving significant benefits and/or the intended economic result;

undue over-income [26]

Tax avoidance

Article 119a or. pod.

Yes

Yes

an artificial transaction + a tax advantage contrary in the circumstances with the object or purpose of the tax law or its provision;

Share exchange

Tax evasion

Article 54 k.k.s.

no

Yes

non-disclosure of the tax base;

failure to make a declaration

Tax Optimisation

None

Yes

no

active action of the taxpayer to reduce the tax rate

Tax savings

None

Yes

no

cessation of activities resulting from the tax obligation

Tax planning

Recommendation from the European Commission

Yes

Yes

many proceedings; the possibility of using many complex mechanisms

Aggressive tax planning

Recommendation from the European Commission

no

Yes

use of technical aspects of the tax system, resulting in double non-taxation

Source: own development.

3. Avoidance of taxation and appearance

Tax avoidance and appearance are legal institutions regulated by completely different branches of law [27] . Unlike tax law, civil law is a private law. This means that the entities are equivalent and there is autonomy in the conclusion of contracts (so-called freedom to conclude contracts).

This is demonstrated by the freedom to decide: with whom, where, how (in the context of the content of the legal relationship; although the type of form may be dependent on the regulations of K.C.) and why to shape its legal relationship (intended).

Private law is characterised by the enforcement of its rights and obligations arising from the content of contracts, so-called safeguards. The party will decide on the initiation of the execution, but it may also fail. In contrast to public law, there are no more effective ways than ex lege forced tools.

It might seem that tax law can be separated from civil law. The decision of the taxpayer to which the contract will be concluded will have an effect on the tax authorities. The question may be raised as to whether tax avoidance will not restrict the freedom to conclude contracts under civil law.

It should be stressed that there is no reciprocity of benefits between the taxpayer and the authorities. Taxes are not due to the action of the authorities, as is the case for civil law contracts (requiring the nature of benefits, equivalence).

This law imposes such an effect on concluded, most frequently executed and executed civil law contracts.

Before the appearance is discussed, it is worth mentioning the annulment of legal acts which are contrary to the law; it is intended to circumvent the law or the principles of social coexistence (Article 58 k.c.). The nullity is not the same as the ineffective avoidance of taxation, as the authorities cannot challenge the validity of the legal acts concluded (fully invalidate them) but merely remove the tax effects of the legal acts (selectiveity).

Appearance as a defect of a declaration of will invalidates ex tunc declaration of will second page with its consent. The existence of appearances depends on making a statement to the party, with its consent, for appearance. They must occur together in the situation under consideration.

Contracts or unilateral declarations of will to another entity may be the subject of appearance, followed by another hidden legal act intended to give rise to a different than originally established legal effect.

Fictional (simulated, covering, external, formal) action is intended to cover the actual (hidden, dissimulated, covered, non-extended, informal). Simulated activity is intended to have effect in the legal environment, as opposed to dissimulated. Interestingly, a person may raise a plea of appearance third.

• Lewandowska [28] distinguishes three types of appearance: absolute, relative filled and relative unfilled, as shown in the table 3.

Table 3. Types of appearance according to E. Lewandowska

Absolute

Relative Filled

Relative incomplete

parties with a clear, apparent statement of will (unimportant) give the impression of carrying out a legal act that comes to the awareness of the environment, functions in trade and has legal effects

parties with an apparent (unimportant) statement of will create the impression that they are carrying out a legal act that comes to the awareness of the environment, but, according to the wishes of the parties, has no legal effect because it is not actually implemented

the parties declare among themselves that the external declarations of will do not give rise to the legal effects indicated therein

the parties mask hidden statements of will and the resulting legal activity (assessed by properties)

as a result of failure to meet the benefit

the effect of a disguised legal act occurs, that is, the benefit is fulfilled at least in part (transition of law)

the benefit will not be met

Source: own study based on E. Lewandowska, The Apparentness of the Will: Civil Law Study, Olsztyn 2018, p. 83.

The main difference is the effectiveness of the act – legal or factual: which one will actually apply without revealing the appearance. Not all are in favor of dividing appearances into three types, distinguishing only two [29] .

An important element of appearance is the time between two actions, actual and apparent, which will facilitate the identification of a defective declaration of will. After revealing the hidden act, the earlier will be ex lege invalid.

Relatively late detection will be associated with inability or excessive difficulty in cancelling operations. For the authorities, such a design may in practice pose quite a problem by showing undisclosed legal activity or proper activity. An example of this is a donation that was actually a sales agreement.

If it is concluded between entrepreneurs, it will certainly be detected faster than in the case of natural persons. The basis for this statement is the transparency of business activity or the access of tax authorities to an extract from bank accounts.

In the case of natural persons, this is sufficiently cumbersome that the parties could do at any time second activity (after five years and the economic operator is dependent on the market).

The continuous monitoring of individuals by the authorities may violate the principle of trust in them or even lead to an excess of powers and obligations, as there is no obligation to carefully examine the actual avoidance of taxation.

Article 199a or. under. covers a wider range of activities which cannot produce legal effects [30] . The avoidance of taxation from appearance is also different from the parties, the ruling authorities (at the Court of First Instance; ensuring impartiality in deciding whether the parties actually intended to perform another legal act).

Appearance is a much older legal institution than tax avoidance, so it does not raise so much systemic controversy and doubts about compliance with the rules of law. The reason for this may be the simplicity of the structure Article 83 k.c.

It is worth noting that private law allows for a broader range of doubts of interpretation than public law, with tax law requiring clarification, on issues such as, inter alia, an advantage contrary to the purpose of the tax law, the reasonable activity of the taxpayer or the pursuit of the purpose of the law.

However, similarities between these legal institutions are noticeable. There are at least two activities and, depending on the wishes of the parties, one it has certain legal effects. Activities are civil-law, between equal civil law entities.

Tax avoidance is far more complex than appearance. Both institutions are similar, but there are more differences between them. The formation of circumvention of tax law, and later avoidance of taxation, was to separate civil law from tax law, which is why the defect of a will statement should not apply to taxes.

Completion

Distinguishing legal institutions is an important element in lawmaking and application. The literal wording of the legislation has a profound impact on the shape and functioning of the state system. Controversy related to any legal standard can cause many complications in practice. An example of this is the circumvention of tax law, which had to evolve to reduce doubts in theory and practice. The course of development of this legal form is shown in the figure 2.

Figure 2. Evolution of tax avoidance

Source: own development.

Perhaps the replacement use of tax evasion concepts with tax avoidance is meant to highlight the number of legal problems arising from widely understood, unclear, vague, questionable and subjective legal forms. The Optimus case is the most frequently cited example that illustrates the abuse of power by the state.

The taxpayer may suffer considerable damage by unwarranted interference by the authorities without receiving the compensation due. If the doctrine cannot formulate a uniform view on legal forms of countering harmful actions of the taxpayer, can the taxpayer be protected in any way?

The principle of legal certainty and trust in the state may not be enough. The likely protection of individual interest is to resort to tax planning, tax optimisation or tax savings, also to avoid unequal fighting with authorities.

The objective of establishing an circumvention of tax law (and also avoidance of taxation) was probably to separate tax law from civil law. This seems to be the right solution if they concern another subject matter of regulation, different legal relations, ensuring the autonomy and systemic separation of these branches of law.

Tax law is linked to civil law because the content of the agreement affects the tax dimension.

The avoidance of taxation, on the other hand, is a much broader legal structure than appearances, it concerns a different legal relationship (unparalleled parties, other ruling bodies on the matter, subject matter of regulation, preservation of the validity of civil acts).

This examination of the legal forms of anti-circumvention tax legislation calls for a precise and detailed definition in the legal system by the legislator, taking into account third State, social and individual interests. Other actions of the legislator will have negative consequences for tax participants as well as potential participants.

Bibliography

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Legal acts

Constitution of the Republic of Poland dated 2 April 1997 (Journal of Laws, item 483 as amended)

Directive 2016/1164 dated 12 July 2016 laying down rules to counter tax avoidance practices which have a direct impact on the functioning of the internal market (Official Journal of the European Union L, No. 193 to 12 July 2016, p. 1 as amended)

European Commission Recommendation dated 6 December 2012 on aggressive tax planning (Official Journal of the European Union L, No. 338 to 6 December 2012, p. 41)

Act dated 23 April 1964 Civil Code (Journal of Laws of 2020, item 1740)

Act dated 29 August 1997 - Tax Ordinance (Journal of Laws of 2020, item 1325 as amended)

Act dated 10 September 1999 Tax Penal Code (Journal of Laws of 2020, item 19 as amended)

Act dated 11 March 2004 on tax on goods and services (Journal of Laws of 2020, item 106 as amended)

Regulation of the Council of Ministers dated 14 September 2021 on the minimum wage and the minimum hourly rate In 2022 (Journal of Laws, item 1690).

Judgment

NSA Judgment dated 31 January 2002 reference no. I SA/Gd 771/01

NSA Judgment dated 29 May 2002 reference no. III SA 2602/00

Judgment of the NSA in Bydgoszcz 17 July 2003, SA/Bd 1498/03, LEX No. 90263

Judgment of the NSA in Bydgoszcz 13 August 2003, SA/Bd 712/03, LEX No. 103673

NSA Judgment(7n) in Warsaw with 24 November 2003, FSA 3/03, ONSA 2004, No 2, item 44

Judgment of the Constitutional Tribunal dated 11 May 2004 reference no. K 4/03 (Journal of Laws, item 1288)

Judgment of the WSA in Warsaw dated 30 May 2005, III SA/Wa 1/05 POP Directive 2006/4, item 61

Judgment of the WSA in Warsaw 30 May 2018, III SA/Wa 2226/17, LEX No. 2578306

NSA judgment of 8 October 2018, reference no. II FSK 1038/18

NSA judgment of 12 October 2018, reference no. II FSK 83/18

NSA judgment of 9 October 2019, reference no. II FSK 3652/19

NSA judgment of 5 November 2019, reference no. II FSK 3751/17

NSA judgment of 6 December 2019, reference no. II FSK 1470/18

NSA judgment of 6 February 2020, reference no. II FSK 818/18

NSA judgment of 5 March 2020, reference no. II FSK 917/18

NSA judgment of 11 March 2020, reference no. II FSK 1013/18

NSA judgment of 31 August 2020, II FSK 1517/18, LEX No. 3063895

[1] Journal of Laws of 1997, item 483 as amended

Author: Aleksandra Białowska

Graduate of the Faculty of Law and Administration of the University of Gdańsk, student first one year in the field of taxation and tax advice Master's degree), member of the European Association of Law Students ELSA Gdańsk).

Article reprinted with permission of the author. Source: Student Law, Administrative and Economic Work, Wroclaw University