Fiscal offense and exclusion of punishment – art. 16a of the Tax penal code. Warsaw, September 10, 2021
On July 26, 2021, the Polish government presented a draft law introducing extensive changes to the tax and social security laws, which were the subject of public consultations conducted by the Ministry of Finance up until August 30, 2021. These changes were partially announced earlier this year and are referred to as the “Polish Deal”.
The latest draft of the Polish Deal provides for an amendment to Art. 16a of the Tax Penal Code, which enables the avoidance of criminal liability in relation to the defective filing of a tax return. The draft regulation will also release the persons responsible for submitting the books from liability.
According to the current wording of this provision, it only applies to the person who:
(1) has submitted a legally effective (within the meaning of the provisions of the Tax Ordinance or within the meaning of the provisions of the Act on the National Revenue Administration) correction of the tax declaration, and
(2) paid in full, immediately or within the time limit set by the authorized body, the tax depleted or subject to depletion.
However, in the case of tax returns relating to legal persons, it is difficult for the perpetrator (i.e. a natural person) to meet the requirement to “pay” a public debt (e.g. VAT payable by the company). After all, a board member, CFO, accountant, etc. cannot pay taxes from their own resources on behalf of the companies they manage. The proposed wording of Art. 16a of the Tax Penal Code provides only for the necessity to pay the amount due without demanding that the amount payable be paid by the perpetrator himself.
The draft provision stipulates that if, in connection with a prohibited act, there has been a reduction in taxes paid, avoidance of liability is possible only when the liability has been paid immediately, but not later than within the time limit set by the financial authority of the preparatory proceedings. In other words, it is necessary to pay the tax without awaiting any indications in this regard from the tax authorities. However, it is important that the amount paid is in the correct amount. Otherwise, it will not be possible to avoid criminal liability.
Moreover, the proposed provision of Art. 16a of the Tax Penal Code specifies who may take advantage of its benefits, indicating that it is the perpetrator of a prohibited act concerning:
(1) submitting a return or
(2) submitting the books.
The provision in the current wording defined the beneficiary of this regulation, indicating this person in a general way, by referring to actions (activities) that exculpate him, taken post factum.
What is very important, the proposed provision clarifies that the exemption from liability shall not apply if, prior to the submission of a correction to the declaration or book, preparatory proceedings for a fiscal offense were initiated, or a fiscal offense was revealed in the course of the pending preparatory proceedings.
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