Settlement of doubts in favor of the taxpayer and vacatio legis. Tax deregulation

How is the new tax principle to be used?

We would like to remind you that today the Tax Code (Article 2a) provides for a principle according to which “not removed doubts as to the content of the provisions of the tax law The taxpayer is decided “(with Latin in Dubio Pro Tibutario). In practice, the tax authorities rarely apply it. As Dr. Jowita Pustuł, a tax advisor, legal advisor in the attitude and collaborators of tax advisory and legal advisory, doubts as to the content of tax law provisions, there is a lot of doubt, therefore the principle of deciding on taxpayers should be used by organs actually every day. In practice, the authorities do not apply this rule because they claim that they have no doubt. It is only at the stage of court proceedings that the taxpayer has a chance that art. 2a of the Tax Code will be taken into account when issuing a judgment – admits Jowita Pustuł.

The new MF proposal concerns the extending of the above rule to “not remove doubts as to the facts”. The assumptions published in the list of legislative works show that it is about “doubts about the facts, which could not be removed after conducting thorough and comprehensive evidence proceedings, i.e. after taking all actions necessary to accurately clarify the facts of the case. ” The ministry reserves that this rule “does not impose the obligation to accept the most advantageous version for the partybut is banned from doing adverse presumptions in a situation where the state of evidence does not allow facts to be determined. Whereas When it is possible to adopt two equivalent versions of events, choose a version more favorable for the tax proceedings. “

Tax authorities will stop saying facts?

Experts generally positively assess the proposal of the Ministry of Finance.

– The new wording of the provision clearly determines that in case of doubt – not only as to the interpretation of the law, but also the facts – the decision should be in favor of the taxpayer. Such a rule was previously applied by administrative courts based on the general principles of tax proceedings, but the tax authorities often indicated that they lacked a clear legal basis. Now they will have it – comments Tomasz Rolewicz, tax advisor, partner in EY.

Andrzej Nikończyk, a tax advisor, partner at KNDP, adds that the introduction of the principle of resolving doubts as to the facts in favor of the taxpayer is a long -awaited change and an important procedural guarantee for taxpayers. – introducing this change in the Tax Code It will allow you to prevent certain practices of the authorities consisting in “adding” the facts or inference from what was not – says Andrzej Nikończyk. For example, the expert explains, the authority should prove the lack of due diligence of the taxpayer, and not simply assume that the taxpayer has not demonstrated that he has been diligent.

A new rule for taxpayers will not change much?

According to Jowita, the application of the principle in Dubio Pro Tibutario when deciding doubts as to the facts in favor of taxpayers is certainly a very good change for taxpayers, As far as – what she would like to clearly emphasize – the tax authorities will admit to doubtful when assessing the facts. – Only then this change will have a positive effect from the point of view of taxpayers. If the organs have no doubt when assessing the facts, then such a very good change will not change anything. A change in provisions must be accompanied by a change in the mentality of tax authorities – admits Jowita Pustuł.

The expert explains that doubts regarding the facts undoubtedly exist and will appear. They often appear even on the basis of real estate tax, when determining whether a given object is taxed with this taxpayer and how (whether it is a building or a building, etc.).

Andrzej Nikończyk expects the new rule will (and should be) quite rarely usedjust like the principle of resolving legal doubts. – First of all, the authority should strive to determine the complete facts. Unfortunately, often the authorities for the facts take not so much established facts, but their own assessment. These elements must be distinguished and this assessment of the established facts will primarily be subject to this principle – believes the expert.

According to Tomasz Rolewicz, it is worth changing the transitional regulations so that they do not suggest that this favorable regulation is valid only for the future. – Since it confirms the jurisprudence and general principles of tax law, there is no reason to limit its application only to new cases – argues the expert.

The six -month vacatio legis will be entered in the Act. Will it be used?

The current government coalition promised six -month Vacatio Legis in taxes, but it has not been accepted so far. Now the Ministry of Finance proposes to enter this as a rule in the Act.

– This is a very important change – says Jowita Pustuł. Reminds you that In previous years, it was not taken into account that taxpayers must prepare for changes. By surprise, e.g. taxation of the CIT limited partnership was introduced, the ordinances “correcting” Polish order from Friday to Monday were issued, various types of tubes were introduced to tax laws after the consultation stage. Such situations were common. – Rather, it was assumed that the changes should surprise taxpayers so that they could not prepare for them (restructure, optimize). However, the truth is that taxpayers must prepare for each change. You need to adapt financial and accounting systems, change internal programs and procedures, train employees, etc. Changes cannot be sudden and unexpected-reminds Jowita Pustuł.

Andrzej Nikończyk fully agrees with this. He also emphasizes that Taxpayers, in particular entrepreneurs, must have a chance to prepare for new requirements and obligations. Today it requires, among others integration of changes in information processes and systems and it cannot be done within a month, in particular if it concerns everyone.

– The assumptions show that there will be exceptions to this rule. Let's hope that they will not become a rule. I also hope that this will not affect the shortening period of the proposed tax changes, because cooperation at this stage turns out to be the most effective in practice – comments Andrzej Nikończyk.

Legislative stage: Draft act amending the Act – Tax Ordinance (Uder2 and Uder3) – assumptions for the project have been published