Basic normative regulations in the field of tax law in Poland

1. Tax offencesRobert Wojdkowski - Head of Division II for the Economic Crimeof the District Prosecutor's Office in Plock

2. Basic normative regulations in the field of tax law in Poland • ACT of 26 July 1991 on income tax from individuals (Journal of Laws of 2012.361 j. t., as amended. ); • ACT of 15 February 1992 on income tax from individuals (Journal of Laws of 2012.361 j. t., as amended.

3. ACT of 6 December 2008 on excise duty (Journal of Laws of 2014.752 j. t., as amended); • ACT of 11 March 2004 on tax on goods and services (Journal of Laws of 2016.710 j.t., as amended); • ACT of 29.08.1997 Tax Code (Journal of Laws of 2015.613 j.t., as amended); • ACT of 28 September 1991 on fiscal control (Journal of Laws of 2016.720 j.t., as amended).

4. Tax offences in the field of excise duties • 1. Offences related to illegal production and distribution of spirits: • - Smuggling or undeclared intra-Community acquisition; • - Decontamination of contaminated alcohol; • - Counterfeiting of branded alcoholic products; • - Production of spirits.

5. 2. Offences related to illegal production and distribution of fuels: • - Composing (blending) engine gasoline based on refined petroleum products not subject to excise duty; • - Reassignment of excise fuel oil (discolouration); • - Declaring products as oils not intended for drive purposes by manufacturers (ceramic oils).

6. 3. Offences related to illegal production and distribution of tobacco products: • - smuggling of tobacco products; • - illegal manufacture of tobacco products.

7. Types of offences related to the excise duty specified in the Penal Code • Art. 63. § 1. Who in the violation of the law distributes excise goods in relation to which the procedure for suspension of excise duty has been completed, without their prior marking with excise stamps, • shall be subject to a fine up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. Who contrary to the provisions of the Act imports within the country excise goods without prior marking them with excise stamps shall be subject to the same penalty. • § 3. Who, producing outside the tax warehouse excise goods referred to in art. 47 (1) (1), (2), (4) or (5) of the Act of 6 December 2008 on excise tax distributes form the finished goods warehouse or sells excise goods without prior marking them with excise stamps shall be subject to the same penalty.

8. § 4. The same penalty shall apply to whoever distributes from a tax warehouse on the basis of an authorization for distribution as a taxpayer of excise goods from someone else's tax warehouse outside the procedure of suspension of excise duty collection, excise goods without prior marking them with excise stamps. • § 5. The penalty specified in § 1 shall also apply to anyone who commits a criminal act specified in § 1-4 in relation to excise goods, which were marked incorrectly or with inappropriate excise stamps, in particular damaged, destroyed, falsified, altered or invalid stamps. • § 6. If the due excise tax is of a small value, the perpetrator of an offence specified in § 1-5 • shall be punishable with a fine of up to 720 daily rates. • § 7. If the due excise duty does not exceed the statutory threshold, the perpetrator of an offence specified in § 1-5 • shall be fined for a misdemeanor tax.

9. Art. 64. § 1. Who without submitting a written notice within a required deadline before the competent authority distributes from a tax warehouse excise goods that are not marked with excise stamps for the purpose of making intra-Community supplies or exports, • shall be punishable with a fine of up to 720 daily rates. • § 2. The same penalty shall apply to the one who while producing outside the tax warehouse grape wines obtained from grapes from their own crops referred to in art. 47 (1) (2) of the Act of 6 December 2008 on excise duty, without written notice within the competent authority without submitting a written notice within a required deadline before the competent authority distributes these excise goods that are not marked with excise stamps for the purpose of making intra-Community supplies or exports. • § 3. The same penalty shall apply to the one who while producing outside the tax warehouse ethyl alcohol referred to inart. 47 (1) (4) of the Act of 6 December 2008 on excise duty, in a distillery legally and economically independent of any other distillery and not operating under license obtained from another entity without a written notice to the competent authority distributes excise goods that are not marked with excise stamps for the purpose of making intra-Community supplies or exports.

10. § 4. The same penalty shall apply to the one who while producing outside the tax warehouse excise goods using only the excise goods on which excise duty was paid in the amount equal or greater than the amount of excise duty payable on manufactured excisable goods without a written notification within a required deadline of the competent authority distributes excise goods that are not marked with excise stamps for the purpose of making intra-Community supplies or exports. • § 5. The same penalty shall apply to the one who while producing outside the tax warehouse excise goods on which excise duty has been paid by prepayment without a written notification within a required deadline of the competent authority distributes excise goods that are not marked with excise stamps for the purpose of making intra-Community supplies or exports. • § 6. (18) The penalty specified in § 1 shall also apply to the one who, without a written notification within a required deadline of the competent authority places in a free zone excise goods that are not marked with excise stamps intended for sale to commercial units located there. • § 7. In the case of lesser gravity, the perpetrator of an offence specified in § 1-6 • shall be fined for a misdemeanor tax.

11. Art. 65. § 1. Who buys, stores, transports, transmits, or transfers excise goods which are the subject of a criminal act referred to in Article 63, Art. 64 or Art. 73 or assists in their disposal or accepts these excise goods or assists in their hiding • shall be subject to a fine up to 720 daily rates or imprisonment of up to 3 years, or both penalties together. • § 2. Who buys, stores, transports, transmits, or transfers the excise goods, with reference to which, on the basis of the surrounding circumstances, they should and can assume that are the subject of an offence referred to in Art. 63, Art. 64 or Art. 73, or assists in their disposal or accepts these excise goods or assists in their hiding • shall be punishable with a fine of up to 720 daily rates. • § 3. If the amount of tax at risk of depletion is a small value, the perpetrator of an offence specified in § 1 • shall be punishable with a fine of up to 720 daily rates. • § 4. If the amount of tax at risk of depletion does not exceed the statutory threshold, the perpetrator of an offence specified in § 1 or 2 • shall be fined for a misdemeanor tax.

12. Art. 66. § 1. Who incorrectly or with inappropriate excise stamps marks excise goods, in particular with damaged, destroyed, falsified, altered or invalid stamps • shall be punishable with a fine of up to 720 daily rates. • § 2. In the case of lesser gravity, the perpetrator of an offence specified in § 1-6 • shall be fined for a misdemeanor tax. • Art. 67. § 1. Whoever forges or alters excise stamps or authority to collect bands • shall be subject to a fine of up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. Who in order to commit a fiscal offence specified in § 1 obtains or prepares measures • shall be subject to a fine up to 240 daily rates or imprisonment of up to 2 years, or both penalties together. • § 3. Is not subject to a punishment for a fiscal offence specified in § 2 the perpetrator, who departed from his achievements, in particular destroyed obtained or adopted measures or prevented from exercising them in the future. • § 4. In the case of lesser gravity, the perpetrator of an offence specified in § 12 • shall be fined for a misdemeanor tax.

14. Art. 68. § 1. Who does not fulfil the obligation to draw up an inventory and submit it for confirmation to the competent authority in case of existing in the trade outside the excise duty collection suspension procedure of excise goods unmarked, marked incorrectly or with inappropriate excise stamps, in particular damaged, destroyed, falsified, altered or invalid stamps, • shall be punishable with a fine of up to 720 daily rates. • § 2. The same penalty shall apply to whoever fails to mark excise goods with legalization excise stamps. • § 3. In the case of lesser gravity, the perpetrator of an offence specified in § 1 or 2 shall be liable to a fine for a misdemeanor tax. • Art. 69. § 1. Who without an official check undertakes actions directly related to the manufacture, import or marketing of excise goods, as well as their marking with excise stamps • shall be punishable with a fine of up to 720 daily rates. • § 2. Who gives false information about the type, quantity or quality of manufactured excisable goods, • shall be punishable with a fine of up to 360 daily rates. • § 3. Who against regulations removes excise goods from the place of production, processing, consumption, storage or during transport • shall be punishable with a fine of up to 240 daily rates. • § 4. Attempted tax offence specified in § 2 or 3 is punishable.

15. Art. 69a. § 1. Who against the regulations of the Act in violation of the conditions for the application of the duty suspension procedure produces, stores or reloads excise goods outside a tax warehouse • shall be subject to a fine up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. In the case of lesser gravity, the perpetrator of an offence specified in § 1-6 • shall be fined for a misdemeanor tax. • Art. 69b. § 1. Whoever contrary to the provisions of the Act makes intra-Community delivery or intra-Community acquisition of excise goods • shall be subject to a fine of up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. In the case of lesser gravity, the perpetrator of an offence specified in § 1-6 • shall be fined for a misdemeanor tax.

16. Art. 69c.  § 1. Who against the obligation to move excise goods from the territory of one Member State in the territory of another Member State through the territory of a country without the simplified accompanying document or commercial document replacing the simplified accompanying document or without a printed e-AD with an assigned reference number or other commercial document, which indicates the reference number assigned e-AD in the System, or a document replacing the e-AD, or on the basis of those documents containing information inconsistent with reality • shall be subject to a fine of up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. In the case of lesser gravity, the perpetrator of an offence specified in § 1-6 • shall be fined for a misdemeanor tax.

17. Art. 70. § 1. Who in violation of the law sells or otherwise transfers stamps to an unauthorized person • shall be subject to a fine up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. The same penalty shall apply to the one who, in order to use or circulate acquires or otherwise accepts stamps from an unauthorized person, or removes them from an excise item in order to re-use or put them into circulation. • § 3. Attempted tax offence specified in § 1 or 2 is punishable. • § 4. The penalty specified in § 1 shall also apply to the one who, not being authorized, possesses, stores, transports, transfers or moves excise stamps. • § 5. In the case of lesser gravity, the perpetrator of an offence specified in § 14 • shall be fined for a misdemeanor tax. • Art. 71. Who in flagrant violation of regulations regarding the transport or storage of stamps puts them in direct danger of theft, destruction, damage or loss • shall be punishable with a fine of up to 480 daily rates.

18. Art. 72. Who against the obligation does not, in a required period with the competent authority, account for the state of consumption of excise stamps, in particular, does not return the unused , damaged, destroyed or invalid stamps • shall be punishable with a fine of up to 360 daily rates. • Art. 73. § 1. Who in the use of the excise product changes the target, purpose or does not save any other condition, on which the act makes dependent an exemption of the excise product from the duty of labelling it with excise stamps • shall be punishable with a fine of up to 720 daily rates. • § 2. If an unpaid due excise duty does not exceed the statutory threshold, the perpetrator of an offence specified in § 1 • shall be fined for a misdemeanor tax.

19. Art. 73a. § 1. Who in the use of the excise product changes his destiny, in particular the use of fuel oil as a diesel fuel, thus exposing the excise tax to depletion • shall be subject to a fine up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. If the amount of the excise tax exposed to depletion is a small value, the perpetrator of an offence specified in § 1 • shall be punishable with a fine of up to 720 daily rates. • § 3. If the amount of the excise tax exposed to depletion does not exceed the statutory threshold, the perpetrator of an offence specified in § 1 • shall be fined for a misdemeanor tax. • Art. 74. (Repealed). • Art. 75. Importer, the entity making intra-Community acquisition and the tax representative who fails to obtain from an entity established outside the territory a settlement from the transferred excise stamps • shall be punishable with a fine of up to 180 daily rates.

20. Types of offences related to tax on goods and services specified in the Penal Code • Art. 54. § 1. A taxpayer who evading paying taxes, does not disclose to the competent authority the object or the tax base and makes no representation, by exposing tax to depletion • shall be subject to a fine of up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. If the amount of tax at risk of depletion is a small value, the perpetrator of an offence specified in § 1 • shall be punishable with a fine of up to 720 daily rates. • § 3. If the amount of tax at risk of depletion does not exceed the statutory threshold, the perpetrator of an offence specified in § 1 or 2 • shall be fined for a misdemeanor tax.

21. Art. 55. § 1. A taxpayer who, in order to conceal business on their own account or the actual size of the business, uses the name, company name or any other entity's name and therefore exposes tax to depletion • shall be subject to a fine up to 720 daily rates or imprisonment of up to 3 years, or both penalties together. • § 2. If the amount of tax at risk of depletion is a small value, the perpetrator of an offence specified in § 1 • shall be punishable with a fine of up to 720 daily rates. • § 3. If the amount of tax at risk of depletion does not exceed the statutory threshold, the perpetrator of an offence specified in § 1 or 2 • shall be fined for a misdemeanor tax.

22. Art. 56. § 1. A taxpayer who while submitting to a tax authority, other authorized body or payer a declaration or a statement declares false statement or conceals the truth or does not fulfil the obligation of notification about the amendment covered by these data, by doing which exposes tax to depletion, • shall be subject to a fine of up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. If the amount of tax at risk of depletion is a small value, the perpetrator of an offence specified in § 1 • shall be punishable with a fine of up to 720 daily rates. • § 3. If the amount of tax at risk of depletion does not exceed the statutory threshold, the perpetrator of an offence specified in § 1 or 2 • shall be fined for a misdemeanor tax. • § 4. The penalty specified in § 3 shall also apply to the taxpayer, who despite the disclosure of the subject or the tax base does not submit within the deadline before a tax authority or the payer a declaration or statement.

23. Art. 57. § 1. A taxpayer who persistently fails to pay within the prescribed deadline a tax • shall be fined for a misdemeanor tax. • § 2. The court may waive the punishment if, prior to the initiation of proceedings for tax offence specified in § 1 due tax for the benefit of the competent authority has been paid in full.

24. Art. 61. § 1. Who leads an unreliable book • shall be punishable with a fine of up to 240 daily rates. • § 2. In the case of lesser gravity, the perpetrator of an offence specified in § 1-6 • shall be fined for a misdemeanor tax. • § 3. The penalty specified in § 2 shall also apply to the one who leads a defective book. • Art. 62. § 1. Who against the obligation does not issue an invoice or bill for performance of a service, issues it in a defective way or refuses to issue them • shall be punishable with a fine of up to 180 daily rates. • § 2. Who issues invoice or bill, as defined in § 1, in an unreliable manner or uses such document • shall be punishable with a fine of up to 240 daily rates. • § 3. The penalty specified in § 1 shall also apply to the one who contrary to the obligation does not store issued or received invoice or bill or proof of purchase of goods. • § 4. The penalty specified in § 1 shall also apply to the one who contrary to the provisions of the Act makes sales without a cash register or does not issue a document from the cash register, confirming a sale. • § 5. In the case of lesser gravity, the perpetrator of an offence specified in § 1-4 • shall be fined for a misdemeanor tax.

25. Art. 76. § 1. Who by providing data inconsistent with reality, or through concealment of the real state of things misleads the competent authority exposing to an undue reimbursement of public law tax receivables, in particular tax under the provisions of the tax on goods and services, excise tax, refund of the overpayment or counting it against tax arrears or current or future tax liabilities • shall be subject to a fine of up to 720 daily rates or imprisonment of up to 2 years, or both penalties together. • § 2. If the amount exposed to undue tax refund is of a small value, the perpetrator of an offence specified in § 1 • shall be punishable with a fine of up to 720 daily rates. • § 3. If the amount exposed to undue tax refund does not exceed the statutory threshold, the perpetrator of an offence specified in § 1 • shall be fined for a misdemeanor tax.

26. 1. Tax evasion Basic tax offences related to tax on goods and services

28. 2. Fictitious intra-Community supply of goods • 3. carousel fraud

29. The controversy related to the application of the law against the perpetrators of tax depletion with respect to the VAT - Separation of the common criminal justice system from the penal tax law; • Priority of the penal tax law over the common tax law (lex specialis derogat legi generali); • The principle of the perfect confluence of a common crime and a fiscal offence (Art. 8 § 1 of the penal fiscal code)

30. Art. 8. § 1. If the same act which is a fiscal offence or tax misdemeanor exhausts also conditions of an offence or crime specified in the criminal legislation of other law, each of these provisions shall be applied. • § 2. Only the most severe penalty is subject to execution, which does not prevent the execution of penal measures or other measures adopted on the basis of all concurrent provisions. The criminal measures and safeguards and supervision is used, even if it was adjudicated only on the basis of one of the concurrent regulations; in case of adjudication for concurrent offences of prohibitions of the same kind or deprivation of civil rights, the court shall apply the provisions of the total penalty. • § 3. If next to the severest penalty, which shall be enforceable, a fine has also been pronounced, this penalty is also subject to the cumulative performance; if next to the severest penalty a few fines have been pronounced, only the most severe fine is subject to the overall performance.