Evidence in tax proceedings, or how to protect yourself!

Service-Tax

The main purpose of tax proceedings is to issue a correct decision in an individual case. In practice, it is possible as long as the tax authority takes all necessary steps to clarify the facts of the case being handled. The establishment of the facts is usually done by taking evidence. This article explains what evidence is in tax proceedings and what its practical role is.

Definition and types of evidence in tax proceedings

The Tax Ordinance (hereinafter: the Tax Act), although it does not contain the definition of "evidence", allows for an open form of tax proceedings. This means that everything that may contribute to the clarification of the case, and is not contrary to the law, should be admitted as evidence (Art.180 of the PAP).

Therefore, the catalog of evidence is open and it can include, in particular: records, tax books, tax declarations, testimonies of witnesses, expert opinions, tax information, as well as evidence collected during criminal proceedings in cases involving fiscal offenses, misdemeanors or documents collected during a tax audit or verification activities.

The Tax Ordinance provides that evidence in tax proceedings is equally valid, regardless of its nature.

Documents as basic evidence in tax proceedings

In practice, evidence in tax proceedings in the form of traditional documents plays an important role in determining the facts. These include the aforementioned tax books, income and expense ledger, records, tax declarations, statistical information as well as official documents such as certificates, decisions, provisions, as well as private documents - e.g. invoices.

The sensitive nature of the documents is due to the fact that the authorities grant them the so-called presumption of truthfulness (the document comes from the authority that prepared it) and presumption of truthfulness (the content of the document is true).

This does not mean that other evidence in tax proceedings is not taken into account at all.

There are, but their participation is usually auxiliary, when the content of the document turns out to be insufficient during the command.

Commonly known facts also count in tax proceedings

According to the wording of Art. 187 § 3 of the GDPR facts commonly known and known to the tax authority ex officio do not require proof.

Commonly known facts (the so-called notorious facts) should be understood as circumstances, events or states that should be known to every reasonable and having average life experience resident in the town where the authority has its seat. For example, historical events, natural disasters, normal and ordinarily occurring events in a certain place and time are well known (Judgment of the Provincial Administrative Court in Lublin of April 22, 2009, file reference number I SA / Lu 15/2009).

However, if the taxpayer wants to prove that he or she is entitled to, e.g. tax relief, then he must submit an application in this matter supported by relevant evidence.

A witness as evidence in tax proceedings

Tax authorities take all necessary steps to thoroughly clarify the facts also through evidence from witnesses or the taxpayer himself.

The taxpayer's request for such evidence should contain the witness's name, surname and current address.

The Tax Code indicates who cannot be a witness:

1) people unable to perceive or communicate their observations, e.g. mentally ill people;
2) persons obliged to keep state or official secrets under the circumstances covered by the secrecy, if they have not been exempted from the obligation to keep this secrecy in accordance with the applicable regulations;
3) clergy of legally recognized denominations - as to the facts covered by the secret of confession.

It should be added that the taxpayer has the right to actively participate in taking evidence from a witness testimony. He should be notified of the place and date of taking evidence from witnesses' testimonies, expert opinions or inspection at least 7 days before the date.

In practice, the taxpayer has the right to participate in the taking of evidence, may ask questions to witnesses and experts, and provide explanations.

As a general rule, witness statements should be made orally.

Simultaneously with the examination of the witness, a report is drawn up, which is read out and put for the signature of the witness after the testimony has been made. Only a protocol signed by a witness acquires a probative value in tax proceedings.

It is worth mentioning that the taxpayer may also be questioned. However, this is only possible if he gives his consent.

In practice, this element of proving is used extremely rarely, as there is a common belief that the information provided by the taxpayer may be characterized by an overly subjective assessment far removed from reality.

It should be remembered that the tax authority may apply order penalties. Pursuant to Art. 262 § 1 of the GDPR a party, a party's representative, an expert witness who, despite the proper request of the tax authority:

1) did not appear in person without just cause, even though they were obliged to do so, or
2) they unjustifiably refused to provide explanations, testimony, issue an opinion, show the subject of the inspection or participate in another activity, or
3) without the consent of this authority, they left the place of carrying out the activities before its completion, they may be punished with an order penalty of up to PLN 2,700.

It should also be remembered that before the witness is questioned, the authority must first educate him about the right to refuse to testify and answer questions and to inform him of criminal liability for false testimony (Art. 196 § 3 of the False testimony should be understood as false testimony or concealment of the truth (Article 233 § 1 of the Penal Code).

Lack of instruction results in the fact that the witness may testify untruthfully without any consequences.

Appraisers can help with tax proceedings

Each time deciding on specific circumstances, whether the evidence submitted by the taxpayer will be relevant to the case, including the opinion of an expert.

Tax authorities are not obliged to take into account the expert's opinion provided by the taxpayer. However, they can optionally appoint their own expert.

Moreover, apart from the expert opinion, the tax authority may individually assess the evidence in the tax proceedings conducted in relation to the taxpayer and determine the market value of things, e.g. a car.

Lack of consent to the taking of evidence takes the form of a decision that is not subject to a complaint. The decision does not have to contain factual and legal justification (Art.217 § 2 of the GDPR).

For this, the taxpayer may challenge the refusal only in an appeal against the decision.

Documents in a foreign language as evidence in tax proceedings

Pursuant to the Basic Law, the official language in the territory of the Republic of Poland is Polish. However, documents drawn up in a foreign language may have an evidential value if they have been previously translated by a sworn translator.

Declarations of the taxpayer's contractors as evidence in a tax case

The Tax Ordinance does not provide for evidence in the form of declarations of the taxpayer's contractors.

The only possible form of proving in this matter would be their interrogation in the manner prescribed for witnesses (judgment of the Supreme Administrative Court - Lublin Branch of June 16, 1999, file reference number I SA / Lu 462/98).

Other evidence in tax proceedings

The entrepreneur does not have to limit himself to the evidence referred to above. Meeting notes, e-mail correspondence or even photos may also be important. Evidence in tax proceedings is to confirm that the event actually occurred and was related to the conducted activity.

Does the taxpayer have to collect evidence in tax proceedings?

There is no provision in the Tax Ordinance that would require the taxpayer to collect and present evidence to the tax authority. It is a taxpayer's right and not an obligation. However, for the sake of their interests, the taxpayer should actively participate in the inspection, and the evidence in the tax proceedings that he presents may protect him from the negative position of the inspectors.