In a new project published on the pages of the Government Legislative Centre Tax Ordinance there are provisions giving taxable persons the right to challenge the decisions of the authorities first immediately to the administrative court, without appeal.
The purpose of such a procedure is to reduce dispute settlement time and the costs of proceedings on the part of both taxpayers, tax authorities and administrative courts. The proposed amendment is under Article 428 draft bill. Under that provision, an appeal may be lodged with the authority’s decision first instances under the following conditions:
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rod first – appeal may be lodged in accordance with the procedure envisaged under Article 57b Law on proceedings before administrative courts. This provision is now in the design phase. Its introduction to the proceedings provides for a draft law introducing the law – Tax Ordinance And the Ombudsman Act.
It provides that the action against the decision of the authority first the instance can only be based on the allegation of breach of substantive law by its misinterpretation or misuse and the court will be bound by the pleas of action and the legal attitude established.
This condition in practice means that the taxpayer would have to accept the way in which the tax authority conducts the proceedings and the facts established by the application directly to the administrative court.
The dispute would only be brought to raise the erroneous interpretation of the substantive provisions or the incorrect assessment of the possibility of the Authority applying them in a specific factual situation. Thus, the taxpayer will definitely lose the possibility of charging the body with a breach of procedural rules.
Another very important change would be to tie the court up with complaints and a legal basis. This means in practice that the court only examines the allegations raised in the complaint.
If he saw in the proceedings of the body infringements of other substantive provisions, even if they were the most legitimate and obvious, he would not be able to decide in this respect.
It is also worth noting that the decision becomes final as from the date of the complaint to the administrative court, which means that the authority will be able to pursue it through enforcement measures.
Also added to Article 58(1) Act point 5b a reservation has been made that the court will reject the action if it contains allegations other than a breach of substantive law. In this case, the action shall be treated as an appeal against an authority’s decision. first instances.
The appeal and the files of the case will be forwarded to the authority second time limits 14 the date of receipt of the final judgment of the court.
The decision in this case will lose the value of the finality, but this will not affect the validity and effectiveness of enforcement actions undertaken until the date of receipt by the tax authority first the instance of information on the final rejection of the complaint, as the enforcement proceedings will be suspended from that date and not terminated.
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rod second – only one pages. In accordance with the reasons for the law, the exclusion of the possibility of making a direct action before an administrative court where there is more than one case one page, is subject to the possibility of the other party submitting an appeal under the standard procedure.
In that case, the time when the appeal and settlement of the case would be significantly extended, and the institution introduced would not produce the expected results in speeding up the settlement of the dispute.
In conclusion, it can be concluded that the proposal put forward by the Ministry of Finance to challenge tax decisions directly to the administrative court must be addressed critically. The fundamental disadvantage of the proposed solution is to reduce the complaint only to allegations of violation of substantive provisions.
Therefore, if taxpayers wish to shorten the proceedings, they will have to do so at the expense of the court's full discretion. At the same time, the complaint itself will have to be prepared with more care than before. The assistance of a professional proxy may be necessary.
Not all taxpayers are sufficiently skilled in law to distinguish the rules of procedure from material law. The error in the formulation of the pleas may result in the rejection and review of the action in the appeal proceedings by the Authority. second instances.
It therefore appears that the possibility to challenge decisions of tax authorities first there is no greater recognition among taxpayers of instances directly to the administrative courts in the proposed form.
Author:
Marcin Kołkowicz
Tax adviser, tax consultant At Russell Bedford Poland Sp. z o.o., a graduate of the Administration, Management and Marketing of the Catholic University of Lublin named after John Paul II. The subject of tax law deals with from 2012. He gained experience in Lublin and in Warsaw tax advisory offices. Author and co-author of many tax publications, in particular for the legal and tax portal TaxFin.pl. In his career, he dealt with both direct and indirect taxation issues, with particular emphasis on VAT.