The taxpayers whose expenditure exceeded income reported for tax typically use different pens to avoid 75-percent. undisclosed income tax. One way is to say that the income derived from the offense.
Today, mere reference to it by the taxpayer makes the tax authorities take action to confirm or rule out this possibility.
– The tax authorities can not, income tax, unless they determine that it comes from legitimate sources. Treasury can not, benefit from acts contrary to the law – says Beata Hudziak, partner and tax advisor 8Tax.
From 1 January 2016. This will change, because the proceedings of undisclosed income will be carried out new rules.
Effects presumption
Changes resulting from the amendment of the PIT Act passed by the Parliament of 16 January 2015 (Dz. pos. 251). The legislator has introduced a presumption that the income derived from activities that may be subject to legally binding agreement. In Art. 2 will be a new paragraph. 6, which would read: “In the absence of proof to the contrary, it is assumed that the income derived from activities that may be subject to legally binding agreement.”
In the explanatory memorandum to the draft is written, that the existing regulations were too often used by taxpayers to rely on fictitious sources of revenue. This meant that the procedure took a long time and they were a nuisance, and the effect was that the tax authorities and so have not been able to determine the actual source of revenue. The amendment is to prevent it. After the entry into force of the new provision, the taxpayer – not the tax authorities – will have to demonstrate that the income derived from the offense and therefore can not be taxed.
– So far, in order to avoid criminal tax rate is usually enough for that taxable income only uprawdopodabniał origin of crime. Did not have to be combined in practice with an indication of concrete evidence, which then could constitute evidence in criminal proceedings – explains Dariusz Malinowski, a partner at KPMG.
Now, it will be different.
– For rebut the presumption taxpayer will have to present evidence to the treasury, which can charge it in other proceedings, for example. criminal – expert explains. In the worst case, this may result in forfeiture of the proceeds of crime things – explains the expert.
What evidence
In support of the project it is written that a taxpayer may use all of the evidence. However, in the case of income from crime evidence is to be the decision of the criminal court or the prosecutor.
As a result of this change in 2016. Tax authorities will assume in advance that the income comes from legal sources and may be taxed 75 -proc. stake.
– If the taxpayer will claim otherwise, it will have to prove the criminal court judgment or decision of a prosecutor. If you do not substantiates their claims for the offense, and yet not be able to demonstrate that the income derived from the business or other sources of income specified in the PIT, the authorities impose the tax remedial – says Beata Hudziak.
At the expense of the taxpayer
According to Arthur Ratajczak, tax consultant and owner of the firm Taxcorner, the introduction of the presumption established and repeatedly breaking emphasized by the courts rule in favor of the doubt taxpayer (in dubio pro Tributario).
This opinion is shared by Mirosław Siwiński, legal advisor and tax advisor in the office of professor. W. Modzelewski. In his opinion, however, a change in the PIT is merely specifying character.
– This presumption worked in practice for years in an effective, albeit silent – says the expert. He added that so far, even if there were evidence that the income derived from the offense, the tax authorities would not give them faith, and courts often accept such a breach of the principle of free assessment of the evidence.
You can not reap the benefits of the offenses
The law has never been recorded that the state can benefit from criminal offenses. Now, this will change. In practice, the amendment of the provision means that if the taxpayer does not provide sufficient evidence to show that the income derived from the offense, the State Treasury will not give up the tax. It is true that the justification of the bill states that the list of evidence, which may be rebutted presumption is open. It is not difficult to imagine a situation in which to rebut the presumption will be needed is a final judgment of conviction of the criminal court. Then, in the course of the ongoing criminal proceedings or even where there is a conviction nieprawomocnego overthrowing it can be difficult. This approach legislators may be surprising due to the fact that all argument for the lack of taxation was that the state can not benefit from acts contrary to the law.
Patrycja Dudek
April 3, 2015
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