Fiscal secrecy versus protection of contractors. Warsaw, January 31, 2023
Tax Ordinance provisions allow all taxpayers to obtain detailed economic and commercial information about their contractors.
The law permits exceptions to fiscal secrecy when disclosure of information is deemed to have greater legal importance. An exemption from fiscal secrecy can be granted to a specific entity upon request for information in the form of a certificate by a business owner, who is a contractor of a taxpayer, regarding events that the taxpayer was required to report in their tax declaration as per tax law provisions.
Information on the activities of entrepreneurs that may be disclosed to their contractors includes:
1) information that the entrepreneur has not submitted or submitted a declaration or other document, which he was obliged to submit under the provisions of tax laws;
2) information about the failure or recognition by the entrepreneur in the submitted declaration or other document, the events to which he was obliged under the provisions of tax laws;
3) information on the entrepreneur’s arrears or non-arrears in taxes resulting from the declaration or other document submitted on the basis of the provisions of tax laws.
The term “contractor” in this context is interpreted broadly. This allows for a wide range of information to be obtained from tax authorities. Both court rulings and legal doctrine support a broad interpretation of “contractor,” including partners and parties to both commercial and non-commercial agreements. The term can refer to general economic relations with a business owner, not necessarily tied to a specific transaction, or to the transaction itself (as per the 2022 Voivodship Administrative Court decision).
The regulations require the entity seeking information to be a business owner. However, there is no such requirement for the entity applying for a certificate. Any individual or entity who is a contractor (in a broad sense) of a business owner may apply for a certificate, regardless of whether they themselves are involved in business activities (as per the 2019 Voivodship Administrative Court decision).
The following objectives were indicated as justification for the introduction of provisions enabling obtaining such information in the draft act amending the Tax Ordinance:
1) protection of taxpayers against raising the consequences of dishonesty of contractors,
2) introduction of a procedure for reliable assessment of contractors,
3) enabling the taxpayer to obtain information about the tax situation of the counterparty.
As a result, taxpayers should be able to obtain information about their contractors beyond their direct transactions. If a contractor accurately records a transaction with a taxpayer but engages in fraudulent activities elsewhere, the goals of the law cannot be achieved. The aim of the law would not be met if verification of contractors was limited only to a narrow aspect of their activity.
Due diligence or caution may necessitate multiple verifications of a contractor. Therefore, it should be possible to obtain information about a contractor’s business activities from tax authorities even beyond the period of transactions between the contractor and the taxpayer requesting the information, which is protected by fiscal secrecy.
Obtaining information in this way is not limited only to VAT settlements, but can and should be used to verify all tax liabilities of our contractors.
phone +48 608 093 541