one of the most commonly used in practice institutions of the tax criminal code is voluntary submission of responsibility (the so-called DPO). It regulates it comprehensively Article 17(18) kx. Procedural issues related to this institution are included in Chapter 16 kx.
When DPO is applied
The voluntary submission of responsibility is that the investigating court agrees that the offender or fiscal misdemeanour has been held liable in a situation where the circumstances of the case are clear and where:
- 1) paid in full due public debt if due fiscal criminal offence or fiscal misdemeanour this amount has been reduced;
- 2) the offender has paid the amount corresponding to at least the lowest penalty of the fine threatening the prohibited act;
- the offender has given his consent to the forfeiture of objects at least to the extent that the forfeiture is mandatory and, in the event that they cannot be lodged, has paid them monetary equivalent; Article 16(2) – sentence third and Article 31(3)(2) apply mutatis mutandis;
- paid at least a flat-rate equivalent of the costs of proceedings.
Note that Article 17(2) kks excludes a certain group of acts from the scope of the DPO. This is the case where:
- 1) fiscal criminal offence is threatened by a restriction of liberty or imprisonment;
- 2) fiscal criminal offence only sanctioned was committed under certain conditions under Article 37(1) or Article 38(2);
- 3) intervened on the subject of the offence, unless it was withdrawn by the intervener until the indictment was brought to court.
Why should we be interested in voluntary submission to responsibility?
Answers Article 18(2) kks, which provides that a final judgment authorising voluntary surrender is not subject to registration in the National Criminal Registry. The person to whom the DPO was given will continue to be treated as a non-punished person.
In summary, it can be concluded that a taxable person who wishes to use the DPO ‘negotiates’ the content of the judgment to be given in his case. The court then, examining the case as a whole, agrees to be held accountable by the perpetrator.
As a result of the functioning of this institution, practice and theory provide a number of doubts and problems that may arise in the course of a procedure for voluntary submission of responsibility. As an example, it is questionable whether a DPO ruling is possible if the perpetrator has not confessed to the criminal offence. There are conflicting views in doctrine and jurisprudence.
Dangers to the taxpayer
One cannot lose sight of the fact that this institution carries certain dangers to the taxpayer. Where irregularities relating to the implementation of tax obligations are discovered in the course of the proceedings, the taxpayer may be in a difficult situation, both procedural and personal.
This may lead to a "worse" negotiating position for the taxpayer when determining the content of a future DPO judgment.
It is true that the decision is given after a consensus has been reached between all participants (tax collector, prosecutor and court), but often taxpayers are unable to negotiate themselves the most advantageous terms of this agreement.
This is because a taxable person who is himself dealing with a partner behind the state machine often succumbs and agrees to a judgment of the content proposed by the prosecutor, fearing that otherwise, the case will be dealt with in the ordinary manner.
The mere recognition of the case does not give the benefits provided by the DPO institution.
As the practice teaches, it is worth negotiating with the prosecutor until the formal preparation of an application for authorisation to submit voluntarily. It must not be offended that the initial proposals on his part are not satisfactory, and it must not be forgotten that the final form of the proposal should reflect the will of all parties.
Author:
Mikołaj Stanisławski
From 2017 related to the firm Russell Bedford Poland. In 2007 graduated from the Faculty of Law and Administration of the University of Warsaw. In years 2008-2011 he made an attorney's application. From 2011 entered on the list of lawyers at the District Bar Council in Warsaw. In 2016 He graduated from the Postgraduate Tax Studies and Tax Law of the University of Warsaw. Specializes in tax and tax matters.