“The Polish Order”, apart from tax laws, also introduces changes to the Fiscal Penal Code (FPC). In practice, these changes may in some cases prove beneficial for taxpayers, but also – in many cases – further complicate their situation.

No obligation to submit “voluntary disclosure”.

Article 16a § 1 of the KKS Act, modified under the “Polish Order”, will mean that theoretically the taxpayer will no longer be obliged to attach an active regret to the correction of the Standard Audit File for Tax (Jednolity Plik Konrolny) – an active regret is a declaration on committing a prohibited act under Art. 16 of the KKS Act, which is a kind of rescue for persons who commit a misdemeanour or fiscal offence – thanks to this, a taxpayer may protect himself against negative consequences of negligence provided that the tax authority has no knowledge of the committed offence.

According to the new regulation of the aforementioned provision, a perpetrator of a prohibited act with regard to filing a declaration or sending a ledger shall not be subject to a penalty if after committing the act, a legally effective correction of the declaration or ledger related to the obligation, incorrect performance of which constitutes the prohibited act, was submitted to a tax authority. In other words, the scope of this provision has been extended from only declarations to tax books, to which JPK undoubtedly belongs. However, it is only the submission of ledgers that is at issue here, and not their unreliable maintenance, to which attention should be drawn.

Therefore, from the beginning of 2022, in order to correct both the declarative and the evidential part of JPK_V7, theoretically, it will be enough for the taxpayer to submit a correction, which in practice will make the taxpayers’ activity much easier, as they will no longer have to submit an additional active regret with every smallest mistake (in addition to the correction).

When can a correction be submitted?

Importantly, § 3 has also been introduced to Article 16a of the Fiscal Code, according to which the provision of § 1 shall not apply if, prior to submission of a correction to a declaration or a ledger, preparatory proceedings for a tax offence or a tax offence have been initiated or a tax offence has been revealed in the course of such preparatory proceedings.

This means that the penalty for correction will not be avoided by those taxpayers against whom – even before the submission of a correction to the return or single control file – preparatory proceedings for a tax offence have been initiated. Moreover, taxpayers whose tax offence is revealed in the course of preparatory proceedings pending in another case will not escape the penalty either.

In the previous legal status (in 2021), when we are faced with an error in a tax return, we may file a correction, which will release us from tax liability, even if penal-fiscal proceedings are pending against us for having submitted an untruth or concealed the truth in a tax return. If we file a correction to our tax return and it is effective, and in addition we pay the amount due, the tax authorities may not institute tax proceedings against us. At the same time, only those corrections submitted after the commencement of a tax inspection, customs and fiscal control or tax proceedings are ineffective

Therefore, according to the new regulations – the speed of filing the correction will be important – and this must take place before initiation of preparatory proceedings for a tax offence. In practice it may be quite difficult if such proceedings are initiated. Pre-trial proceedings have the advantage that the taxpayer has no way of knowing that they have been instituted before charges are brought against him. The taxpayer may never find out about proceedings “pending in another case”. This makes the institution of Article 16a of the Code of Criminal Procedure practically dead. This is because “just in case” taxpayers should in any case file an active repentance at the same time.

Penalties in transfer pricing

The changes in the Fiscal Code will also apply to the transfer pricing issue. We wrote more about the changes in transfer pricing in “Polish Order” on our blog – there we also discussed the issue of new penalties provided for in the Fiscal Penal Code.

The provision conditioning liability for failure to submit transfer pricing documentation – Article 56c of the KKS Act – has been significantly expanded. Previously, the above-mentioned article indicated only a failure to submit the statement to the competent tax authority – which was punishable by a fine of up to 720 daily rates.

Under the provisions of the “Polish Order” (i.e. from 1 January 2022) a fine of up to 720 daily rates will be threatened, in the following cases:

• the taxpayer does not prepare the local transfer pricing documentation or does not attach the group transfer pricing documentation to the local transfer pricing documentation, as required
• the taxpayer prepares the documentation not in conformity with the real state
• the taxpayer does not submit TP-R information to the relevant tax authority or submits data that are inconsistent with the local transfer pricing documentation or the actual state of affairs.

On the other hand, preparing the documentation after the deadline or submitting TP-R after the deadline will be punished with a fine of 240 daily rates. In the case of lesser gravity, the perpetrator would be subject to a fine for a fiscal offence (the regulation currently in force).

In addition, the stipulated fine of 720 daily rates (the amount has not changed) will realistically increase due to the increase of the daily rate compared to 2021. (from PLN 93.33 to PLN 37,333.33) and will be from PLN 100.34 to PLN 40,133.33

The Fiscal Penal Code and new tools for tax authorities

Another new sanction of up to 720 daily rates of fine provided for in the Code is for thwarting or obstructing so-called “purchase with inspection”.

Furthermore, §1a has been added to Article 83 of the Code, according to which, refusal to accept returned goods acquired in the process of purchase with inspection, to accept a fiscal receipt documenting the sale of goods or services, or to return payment for returned goods in the process of purchase with inspection will be sanctioned by a fine for a fiscal offence.

As a reminder, ” purchase with inspection” is a new tool for controlling taxpayers, which was provided for in the act on the National Fiscal Administration. Through a checking acquisition, a tax authority may check whether a taxpayer records sales on a fiscal cash register/issue a fiscal receipt.

According to Article 94k of the Code: a purchase with inspection consists in the purchase of goods or services for the purpose of verifying the compliance of the verified person with his obligations under the tax law in the field:

• the recording of sales using a cash register;
• issuing a fiscal receipt to the buyer.

Undoubtedly, the above-mentioned changes resulting from the “Polish Deal” require taxpayers to be even more diligent when making tax settlements.