The statistics of the proceedings indicate that Fiskus began to use the GAAR clause, which from 2016 She remained dormant. It's collapsed, too. first judgments challenging the action of tax authorities.
As expected, in response the taxpayers went to the courts and collapsed first judgments concerning the unlawful use of GAAR by Fiskus
The GAAR (General Anti Aviation Rule) is present in the Polish tax system from 15 July 2016. It raises concerns from the outset, inter alia, because the description of the tax avoidance activity itself is too broad and vague. He's regulating it. Article 1.
119a section 1 Tax Ordinance, which states that it is an activity or a set of activities which is simultaneously carried out for the purpose of achieving a tax advantage, and at the same time is contrary in the circumstances to the subject matter or purpose of the tax law or its provision, and the way in which the entity takes it was acting was artificial.
Proceedings against the taxpayer may be initiated here with Article 303 A Code of Criminal Procedure (NCP) which states that ‘if there is a reasonable suspicion of a criminal offence, the decision to initiate an investigation in which the conduct under investigation and its legal qualification are determined shall appear of its own motion or as a result of a notification of a criminal offence, whereas the entity's optimisation activities cannot be regarded as a priori as a criminal offence.
By four The years of Fiskus did not reach for a clause, perhaps because of the too vague law that GAAR implemented. In the face of the pandemic, there has been a need to reach into taxpayers' portfolios, which is reflected in the fact that by September 2020 started until 20 proceedings, in turn in 3 quarter 2021 It was already there. 25 Things.
As expected, in response the taxpayers went to the courts and collapsed first judgments concerning the unlawful use of GAAR by Fiskus. The Provincial Administrative Court in Warsaw ruled in two Joined Cases reference no. III SA/Wa 1247/21, III SA/Wa 1248/21, in which the contested decisions of the tax authority were repealed.
The court, after consulting the Anti-Tax Avoidance Council, concluded that Fiscus could not assess the appropriateness of the selected optimisation measures, taking into account only a fragment of them. They should be assessed in a broader context, taking into account economic and economic factors.