MF wants to maintain solutions that allow the tax authorities to extend the tax limitation period

The Ministry of Finance wants to maintain solutions to extend the tax limitation period; The planned amendment to the Tax Code may not change much regarding the instrumental initiation of tax criminal proceedings – said PAP expert from MDDP Chancellery Jakub Warnieło.

The Ministry of Finance has prepared and published a draft amendment to the Tax Code, which is to solve the problem related to the limitation period for the tax liability. As a rule, it is 5 years from the end of the year in which a tax liability arose, but there are cases when the limitation period is suspended. According to entrepreneurs, the tax authorities abuse the right to suspend the limitation period by initiating fiscal criminal proceedings, which extends the procedure sometimes by years. According to the tax advisor from the MDDP Law Firm, Jakub Warnieło, the regulations proposed by the Ministry of Finance change little when it comes to extending limitation periods.

“The biggest disappointment is the provisions regarding the suspension of the limitation period due to the initiation of a fiscal criminal proceedings. This topic has been rolled for years, we had a resolution of the Supreme Administrative Court, which was to prevent the instrumental initiation of these proceedings. The most serious crimes that will be calculated in the regulations.

He added that the vast majority of fiscal criminal proceedings are started at the end of the limitation period for the tax liability. In addition, in his opinion, the provision, under which the initiation of proceedings suspends the limitation period for a tax liability, has no rational justification.

“This provision arose to give the possibility of using materials from a criminal case in tax proceedings. Meanwhile, as practice shows, most cases are not used material from a criminal case, because nothing is just happening there. In fact, this provision is almost exclusively used to suspend the limitation period and that tax authorities have more time to issue a decision,” said tax advisor.

The planned amendment to the Tax Code has a provision under which there will be no suspension of the limitation period, if the value of potential depletion does not exceed 200 times the minimum wage (under the current conditions this limit is slightly PLN 933.2 thousand). This solution – according to the MDDP expert – will limit the number of tax proceedings initiated by the tax office.

“Only that often these proceedings, even in Vatan matters, relate to larger amounts. We did calculations and it turned out that the average determination from the customs and tax case is about PLN 1 million. So yes, this solution may exclude cases of lower value, but in other tax authorities may feel even encouraged to start proceedings, since so many doubts of the Ministry of Finance leaves these provisions. Tax. The most serious crimes should indicate that it concerns organized criminal groups or recidivists. And yes – the recipe will continue to be used against honest taxpayers, “said Varnea.

He added that the doubt included in the proposals of the Ministry of Finance is a change extending criminal liability for unpaid tax liability from 5 to 10 years. Currently, the limitation period for a tax liability also means the limitation of criminal record for the act related to the depletion of this liability. In other words – the taxpayer cannot be punished by the criminal court for not paying the obligation if he has expired.

“In the Meanwhile draft ordinance, it is offered the possibility of incurring tax liability for irregularities in settlements, even when these settlements have been limited. The effect may be that the taxpayer will be able to be punished for submitting a tax return, which in no way has been questioned by the tax authorities. In addition, the taxpayer is required to keep tax documents by the period of limitation of the tax liability, so he will be difficult to assess defend in a criminal case if he deletes documents after this period. He added that the penalty as part of the fiscal criminal proceedings may be both a fine as well as deprivation or limitation of freedom. The court may also order the obligation for the convict to pay the equivalent of tax depletion.

In his opinion, there are other solutions in the planned amendment that raise some doubts. As an example, he indicated the regulation according to which the securing the tax liability with the mortgage is to interrupt the limitation period. Thus, the use of this solution will mean that the limitation period will be re -calculated.

“Currently, the obligation secured by a mortgage does not expire. The similar provision has already been found unconstitutional 12 years ago, but to this day no one has removed it. Now there is a proposal of a change that removes the unexpectedness of the obligation secured with a mortgage. It is very good that the project designer plans to remove it. It was a bizarre situation that for so many years no one has done anything.” In my opinion, in order for this change to be consistent with the other regulations regarding the limitation period, the mortgage should not lead to interruption but suspension of limitation. The mortgage is one of the methods of securing the obligation, therefore it should affect the limitations analogous to other forms of security. So it seems that here you should also save the suspension of the limitation period, not counting it again, “said Jakub Warnieło.

Another solution proposed in the planned amendment to the Tax Code is to extend the limitation period for a tax liability by a year, if the taxpayer before the expiry of the primary period submits the correction of the tax return in which the overpayment will appear or increased or the loss will appear or increased. According to the expert, this is an incomprehensible change.

“If the taxpayer submits a correction and applies with the correction for an overpayment, then the tax authority may examine this corrected tax return even after the limitation period expires. Meanwhile, the project proposes to extend the deadline by a year, so the authority may not only examine whether the overpayment is entitled to, but he may examine the whole commitment and will have the right to determine the additional arrears,” he said.

He added that there are also changes in the proposed regulations that should be considered good. He mentioned, among others The introduction of the principle that submitting an application to rectify the decision of the tax authority suspends the limitation period.

“This is a change that the Ministry of Finance is trying to seal the system. One of the treatments that the parties use is to submit a request to rectify the decision, only to lead to the limitation period, because the proceedings related to the rectification of the decision can last several months. The proposed provision is to prevent the use of this type of play” – said the tax advisor.

Another good solution, according to PAP interlocutor, is to clarify the moment when the period of suspension of the limitation period ends after the end of the court proceedings. Currently, this is the moment of receiving a final judgment by the authority.

“The problem is that the court often sends a final judgment and then the case files. As a result, the limitation period often runs, but the authority has no case file and nothing can do. The new provision says that the suspension of the limitation period ends when the authority has both the judgment and the judgment and the case of the case,” said the expert.

Marek Siudaj (PAP)

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