Administrative Court RulingsTax lawTax LitigationInstrumental initiation of tax criminal proceedings – an ineffective way to suspend the tax limitation period

In February 2026, our law firm represented a taxpayer in a case where the administrative court addressed the issue of the instrumental initiation of fiscal penal proceedings. This ruling is of significant importance for assessing whether the tax authorities effectively suspended the running of the statute of limitations for a tax liability, and consequently – whether they retained the right to issue an assessment decision and enforce the collection of tax dues.

According to Article 70 § 6 point 1 of the Tax Ordinance, the running of the statute of limitations is suspended on the date of initiating proceedings concerning a fiscal offense or a fiscal contravention. However, the jurisprudence of administrative courts indicates that this effect does not occur in the case of actions of an exclusively ostensible nature.

The position and actions of the tax authorities: In the analysed case, the tax authorities assumed that the formal act of initiating a fiscal penal procedure before the expiration of the five-year period results in the suspension of the running of the statute of limitations. As the case files show, the authorities took the following actions:

• in October 2017 (less than three months before the expiration of the tax limitation period), an investigation into the provision of untruthful information in tax returns was initiated, and the taxpayer was notified of this fact;
• in May 2018, a decision on presenting charges was issued;
• in December 2018, the limitation period for the punishability of the alleged act expired;
• in October 2020, the authority presented the charges to the taxpayer;
• in December 2023, the investigation was discontinued due to the expiration of the punishability of the act.

The Director of the Tax Administration Chamber argued that the above chronology indicates the lack of an instrumental nature of the proceedings. According to the authority, evidentiary material justifying the presentation of charges had been gathered, and the ultimate discontinuation of the investigation resulted solely from the passage of time (expiration of punishability), and not from the lack of elements of a prohibited act.

The court’s legal assessment – premises for recognizing actions as instrumental: The administrative court, invoking the resolution of the Supreme Administrative Court (case signature I FPS 1/21), did not share the tax authorities’ position. After analysing the case files, the court concluded that the instrumental nature of the tax authority’s actions was evidenced by the following circumstances:

1. Lack of real evidentiary activity: The court pointed out the prolonged inactivity of the fiscal authorities. The first action after the initiation of the investigation in October 2017 was the internal drafting of the decision on presenting charges in May 2018. The court indicated that the authority did not undertake its own actions, and its activities were limited to incorporating documents gathered in the parallelly conducted tax proceedings into the files.
2. Internal documentation: The court took into account the content of an internal official memo from May 2018. This document explicitly showed that the case had not yet been concluded solely due to the planned summoning of the taxpayer for questioning as a suspect, and immediately after this questioning, “the investigation will be discontinued.” The court assessed this note as evidence confirming a predetermined, instrumental plan of action and a lack of real intent to achieve the penal-legal objectives of the proceedings.
3. Failure to demonstrate attempts to serve summonses: The criminal proceedings did not transition from the phase conducted in the matter (in rem) to the phase against a specific person (ad personam) before the expiration of the limitation period for punishability. In response to the authority’s argument regarding the taxpayer’s failure to appear, the court noted that the case files lack evidence documenting attempts to effectively summon the party for questioning.
4. Continuation of the fiscal penal proceedings after the expiration of punishability: The court established that after December 2018 (i.e., after the expiration of the punishability of the act), the authority did not conclude the proceedings. Instead, in October 2020, charges were announced to the taxpayer, and the formal discontinuation of the case did not occur until December 2023. The court assessed such an action as being aimed solely at maintaining the state of suspension of the running of the statute of limitations for the tax liability.

Conclusion and legal effects: The administrative court stated that the tax authority’s position on the effectiveness of suspending the statute of limitations in the analysed factual state is unjustified. According to the court, the sole objective of initiating the fiscal penal proceedings was to create a premise for applying Article 70 § 6 point 1 of the Tax Ordinance, which was assessed as an abuse of law.

In accordance with established jurisprudence, in the event of finding an instrumental initiation of proceedings, the suspension of the running of the statute of limitations does not produce legal effects. Given the lack of a real evidentiary initiative by the financial preparatory proceedings authority, the court concluded that the disputed tax liability expired with the lapse of the statutory, five-year period, which resulted in the annulment of the challenged decision.

The use of the provisions of the fiscal penal procedure in order to preserve the deadline for issuing an assessment decision was assessed by the court as a violation of the general principle of conducting proceedings in a manner that inspires trust in the tax authorities.

Bernard Łukomski
Legal Counsel
Tax Advisor
tel. +48 608 093 541 / WhatsApp+48 692 802 229

Warsaw, March 16, 2026