What is the difference between a crime and a tax offense?

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An act prohibited by law under penalty of a penalty may constitute an offense or a crime. Colloquially, these terms are used interchangeably, but this is not correct. They differ significantly from each other, especially in terms of the legal consequences associated with their commission. It is worth being aware of the difference between a crime and a tax offense.

Crime and tax offense

Pursuant to Art. 53 § 3 of the Act of September 10, 1999, the Fiscal Penal Code (Journal of Laws No. 83, item 930), hereinafter: the Penal Code, a fiscal offense is an act prohibited by the code under penalty of a fine specified in amount, if the amount is reduced or exposed to depletion of public law receivables or the value of the subject of the act does not exceed five times the minimum wage at the time of its commission (in 2017 it will be the amount corresponding to 5 x PLN 2,000 = PLN 10,000; in 2018, 5 x PLN 2,100 = PLN 10,500) .

Moreover, a prohibited act is considered a fiscal offense, irrespective of the amount of the depleted amount due, if it is explicitly provided for in the Fiscal Penal Code. For example, you can indicate such acts as persistent violation of the deadline in tax payments, failure to show customs duties on exported goods, impersonating another entity or repeatedly issuing incorrect sales receipts.

Moreover, the Fiscal Penal Code recognizes a minor offense as a minor offense in relation to an act generally stipulated in the Act. For example, a minor offense is considered to be a minor act of neglecting tax information.

Example 1.

Mr. Jan was again one month late with the tax payment. He added the interest due on this account to the amount of tax paid. There has been no reduction in public law liabilities, however, pursuant to Art. 57 § 1 of the Commercial Companies Code, a taxpayer who persistently fails to pay the tax on time is subject to a fine for a tax offense.

Pursuant to Art. 53 § 2 and 3 of the Code of Criminal Procedure, a fiscal offense is an act prohibited by the Code under penalty of a fine in daily rates, a penalty of restriction of liberty or a penalty of imprisonment, if the amount of the diminished or subject to depletion of public law receivables or the value of the subject of the act does not exceed five times the minimum wage in at the time of its commission (in 2018, 5 x PLN 2,100 = PLN 10,500).

Increase of the minimum remuneration for work and the legal qualification of an act

The minimum wage ratio is variable. In practice, it increases every year. Therefore, there was a doubt as to whether the minimum wage indicator applicable at the time of the commission or the judgment should be used to qualify an act? There may be a considerable time lag between these events.

This issue was analyzed by the Supreme Court, which in its judgment of 29 November 2017, V KK 229/17, indicated that when making the legal qualification of an act, the minimum wage ratio applicable at the time of the commission of the act should be used, in accordance with the wording of the act. when, at the time of adjudication, the ratio is in a different amount. In this case, the provision of Art. 2 § 2 of the Code of Criminal Procedure, according to which if, at the time of adjudication, a law other than the time when the crime is committed and the tax offense is in force, the new law shall apply, however, the previous law shall be applied, if it is more relative to the perpetrator.

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Example 2.

In 2017, Mr. Jan committed a prohibited act consisting in the fact that, acting with the intention to reduce the amount of tax liabilities on him, he caused false data in the company's VAT-7 tax declarations, submitted to the Tax Office in L. for individual months from January 2017 until July 2017 with regard to input VAT amounts, by using unreliable VAT invoices intended to document the alleged purchase of toners, inks, computer kits and software. As a consequence, there was a reduction in tax liabilities by PLN 10,100. The trial started in 2018. In this situation, the amount of tax reduction exceeds the statutory threshold applicable at the time of the commission of the act, setting the limit exceeding the crime and the tax offense. Despite the fact that at the time of the judgment, committing such an act due to the increase in the minimum wage ratio would not constitute a crime, Mr Jan will be criminally liable for a fiscal offense, because the legal classification of the act will be made by the court on the basis of the indicator in force at the time the act was committed.

Several behaviors and one act

Pursuant to Art. 6 § 1 of the Code of Criminal Procedure, the same act may constitute only one tax offense or only one tax offense. § 2 of the cited provision indicates that two or more actions taken in short time with the same intention or using the same opportunity are considered to be one offense; in the scope of prohibited acts consisting in the reduction of or exposure to depletion of public law receivables, a short period of time is considered to be up to 6 months.

The Supreme Court, in its decision of March 20, 2013, III KK 409/12, exhaustively explained the conditions for accepting a continuous act, indicating that: “the condition for accepting a continuous act is to undertake two or more acts at short intervals. The noun "spacing" also has a meaning for understanding this phrase, which in dictionary terms means the distance between two phenomena, events, a constant interval between successive stages of a process or between events that repeat "(see Dictionary of the Polish language, PWN, vol. 3, electronic version, p. 666). The time interval is the length of time that elapses between one event and the other, where for phenomena consisting of more than one event, the time spanning successive events is important, not the time span between the first and the last event. From the point of view of a continuous act, the phrase "at short intervals" refers to the period that elapses between successive behaviors. In other words, "short intervals of time" are intervals between the first and second behavior, the second and the third, etc. the last behavior in the sequence.

Example 3.

In 2017, Mr. Jan committed a prohibited act consisting in the fact that, acting with the intention of reducing the amount of tax liabilities on him, he caused false data in the company's VAT-7 tax declarations submitted to the Tax Office in L. for individual months from January 2017. until July 2017 with regard to input VAT amounts, by using unreliable VAT invoices intended to document the alleged purchase of toners, inks, computer kits and software. In each of the above-mentioned reporting periods, Mr. Jan reduced the tax liability by the amount of PLN 1,683. As a consequence, in the indicated period, there was a reduction in tax receivables in the amount of PLN 10,100. None of the behaviors of Mr. Jan was a crime on its own, because the reduction in tax liability caused by them did not exceed five times the minimum wage. However, pursuant to Art. 6 § 2 of the Code of Criminal Procedure, a number of these behaviors should have been classified as a single prohibited act that would constitute a crime. They were made at short intervals and with the same intention.

The limitation period for a criminal record

Pursuant to Art. 44 of the Code of Criminal Procedure, the punishability of a fiscal offense ceases if years have elapsed since its commission:

  1. 5 - when the act constitutes a fiscal offense punishable by a fine, restriction of liberty or penalty of deprivation of liberty not exceeding 3 years,

  2. 10 - when the act constitutes a tax offense punishable by imprisonment exceeding 3 years.

The punishability of a fiscal offense consisting in the reduction or exposure to the reduction of public law receivables also ceases when the liability is time-barred.

It should be emphasized that in the fiscal penal law, subject to the risk of depletion of tax or other state receivables, the time of committing a fiscal offense is determined at the end of the year in which the payment deadline for this receivable expired (judgment of the Supreme Court of August 9, 2002, file no. V KKN 305/00).

In the case of tax offenses, the termination of the criminal record is:

  1. 1 year,

  2. if the proceedings are initiated - 2 years after the end of this period.

Example 4.

Mr. Jan committed a fiscal offense consisting in providing false information in the annual tax return PIT-36 for 2015 by lowering the reported income, as a result of which he exposed the personal income tax to depletion, thus exhausting the features of a fiscal offense stipulated in Art. 56 § 2 of the Civil Code The deadline for submitting the annual tax return for 2015 and the payment of the tax resulting from this tax return expires on April 30, 2016. Therefore, the limitation period for criminal records begins on December 31, 2015, i.e. at the end of the year in which the deadline for payment of public law receivables exposed to depletion expired. .