Prawo.pl: The reform of the FPK challenges the Codification Commission
The newly established Criminal Law Codification Commission has already started its work. Criminalists have high hopes for it. One of the most important issues, which needs to be addressed quickly, is the deep revision of the Fiscal Penal Code. A significant part of the amendments to the FPC in recent years consisted in the addition to it of provisions criminalising further misconduct, writes Dr Grzegorz Keler, advocate, senior manager at Thedy & Partners, for the Prawo.pl portal.
The Fiscal Penal Code was enacted in 1999. Since then, it has been amended dozens of times. The practice of its application has also changed. The tax authorities quite quickly realised how the provisions of the Fiscal Penal Code could be used to facilitate their tax audits and proceedings. It became common practice to initiate proceedings for a fiscal offence only to suspend the running of the limitation period for tax liabilities. Following interventions by, inter alia, the Ombudsman and the Ombudsman for Small and Medium-sized Enterprises, the Supreme Administrative Court in a resolution of 24 May 2021. (ref. I FPS 1/21) strongly opposed this practice.
However, it can still be observed that it is not uncommon for authorities to initiate criminal tax proceedings solely for this purpose. They try to disguise this purpose by carrying out more or less sham evidentiary actions or by bringing charges. The latter solution is, moreover, extremely problematic, as the so-called financial pre-trial authorities (the head of the tax office or customs and revenue office) are not in the habit of analysing whether guilt can actually be attributed to a person. It is not uncommon for suspects to be selected on a presumptive basis, for example only because they held a certain position (e.g. CEO) within the structure of the entity in question during the period in question. Such a person then lives with the stigma of a suspect, for which the tax authorities do not have to rush to conclude the case, as they are not threatened by the tax statute of limitations.
Entire article: Reforma KKS wyzwaniem dla Komisji Kodyfikacyjnej – opinia dr Kelera (prawo.pl)