MF: Fiskus has a powerful new weapon. Presumption – Interia

This possibility actions of the tax authorities of first instance confirms the recent Supreme Administrative Court. This radically shift in jurisprudence. Two years ago, the courts require the authorities much more careful action.

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The principle is that the decision not final instance authority shall not be executed. At this time, since the taxpayer has the right to appeal, and the Chamber treasury may agree with him and reverse the decision of his predecessor. This rule applies only since 2009.

Immediately feasible

The exception would be possible to give a non-final decision of immediate enforceability. They must, however, be jointly fulfilled two conditions:

– there must be at least one of the four conditions set out in par. Article 1. 239B op;

– the tax authorities must be able to substantiate that the obligation arising from the decision will not be made (Art. 239B par. 2 op.)

As for the four mentioned conditions, the mean they that:

1) the tax authority has information, that for a taxpayer pending enforcement proceedings in respect of other monetary claims, or

2) the taxpayer does not have the assets on which to establish a compulsory mortgage or tax lien, of which the first would be to download tax arrears plus interest for late payment or

3) the taxpayer disposes of property of considerable value, or

4) expiry of the limitation period, the tax liability is less than 3 months.

even if either of these four conditions, it would have to be even the second condition – the office must be able to substantiate that the obligation arising from the decision will not be made ( art. 239B par. 2 op.)

the term is not enough

Offices is convenient to reach for the argument about the imminent expiry of the limitation period. If there is less than three months, is probably the obligation arising from the decision will not be made – say and think that it is enough to probable.

Sometimes even fall accusations against the taxpayer, despite twice advising not answer decision, did not pay taxes voluntarily, he has not applied for tax relief and still appealed (in addition to the last day of the term!). Probably so acted for time, and given that the Board of duty has two months to consider the appeal, certainly counting on the fact that the expiry of the limitation period will avoid payment.

For a long time all these arguments, one after the other, they were overturned by the courts. It was pointed out that since the decision of the body of first instance is payable, it can not be done taxpayer plea that voluntarily regulate the commitments. His law is also not receive the package at the post office – that’s what introduced the institution of a fictitious delivery to assume that the shipment twice unclaimed treated as delivered. The taxpayer has the right not to use the tax breaks, especially when you do not agree with the dimension and intends to overthrow him.

The courts also underlined taxpayer’s right to appeal, even if he had to do it on the last day of the allowable limit. The more that – as recalled – the taxpayer has to appeal only 14 days from the receipt of the decision. So if it affects the tax chamber just before the prescription is probably not the fault of the taxpayer, but earlier tardiness instance authority. “Giving rigor would not be necessary, if not for tardiness tax authorities, which was the main reason for this situation, and so a late decision by the body of first instance” – NSA ruled in its judgment of 2013 (ref. No. Act II FSK 2449/11) dismissed the cassation appeal against the Administrative Court in Wroclaw, 2011 (ref. no. I SA / Wr 456/11).

the courts accused by the Director of the Chamber, that – counting deadline for limitation – a rule adopts a two-month the deadline for consideration of an appeal of the taxpayer. And yet, according to Art. 139 par. 3 of ordination, this is the maximum time. There is nothing to prevent the director of the Chamber issued a decision earlier.

Time is

Almost identical statements died on the issue in 2013 (ref. No. Act I SA / Wr 419/13). WSA riposte to claim the bodies was the same.

It seemed that the NSA and the time share that argument. It happened otherwise. This time, the Supreme Administrative Court decided that in order to substantiate that the obligation is not made, suffice it to say that it was not enough time. Since the expiry of the limitation period has remained a very short period, “in terms of the probability of default of the tax are irrelevant facts relating to the assets of the taxpayer, the financial resources of the existing attitudes with regard to the payment of dues public. Even with very large assets, exceeding many times the value of tax obligations laid down in the decision of the first instance, this obligation does not in fact made no decision to give immediate enforceability, because expire as a result of limitation “- said the NSA (ref. act II 2903/13).

in this the first instance body issued its decision in less than two months before the expiry of the limitation period. NSA found, however, that such conduct, “although undesirable, is, however, support the regulations in force and can not be considered in the category of culpability or tardiness of the tax authority.”

Similarly, the Supreme Administrative Court ruled January 13, 2016 r. In another case (Ref. act II FSK 2317/15).

That was not the purpose of this regulation – Dariusz Malinowski, partner and tax adviser at KPMG

The position presented in the recent judgments NSA means that the other conditions for conditioning the opportunity to give a non-final decision of the tax immediate enforceability in practice do not matter – to give such rigor is sufficient only that the period until the expiry of the limitation period is shorter than 3 months.

such a position It undermines the entire regulation. It may also arouse surprise in light of the generally accepted in the science of law rules of interpretation of legal norms – including in particular the prohibition of interpretation per non est, namely the prohibition on interpreting the regulations, so that some fragments turned out to be unnecessary. If the intention of the legislature was that the decision pierwszoinstancyjna subject to execution whenever the expiry of the limitation period is less than 3 months, the legislature in such a simple way to formulate the provision giving the indication other – unnecessary in this situation – circumstances giving immediate enforceability.

also the same principle unenforceability decision of the tax authorities of the first instance loses the practical significance of such an interpretation. Decisions pierwszoinstancyjne, although inconclusive, and theoretically feasible, will be feasible only temporarily – until the approximation of the limitation period. If only the expiry of that period is less than three months, these decisions I will be enforceable, regardless of any other circumstances arising from the provisions of electoral law. ??

How probable must be adequate to the premises – Maciej Zborowski, a lawyer and tax adviser in the Office of Tax Irena Ożóg Sp.k.

Recent case law of the Supreme Administrative Court crosses a dispute as to the meaning of probable non-enforcement. With the probable meaning in the context of premises close to the expiry of the limitation period, actually irrelevant seem circumstances relating in particular to the financial situation of the taxpayer. The liability resulting from the decision will not be made, as soon expires or is, according to the NSA is adequate circumstance facie that less than 3 months period until the expiry of limitation poses a risk that the decision will not be made.

Katarzyna Jędrzejewska

February 15, 2016