Evidence in the course of tax proceedings

Service-Tax

In the course of the tax proceedings, the tax authority bears the burden of evidence, which means that it is obliged to prove all the facts relevant to the case that affect the content of the decision. This does not mean that the taxpayer who is a party to the proceedings must remain passive. He has the right to present his own evidence in the course of tax proceedings in support of the theses.

Evidence in the course of the proceedings - general definition of evidence and its catalog

According to the general theory of law, the purpose of relying on a given evidence in the course of proceedings is to state a fact or a factual state. In the course of tax proceedings, evidence is an important instrument for gathering knowledge and information on the correctness of taxpayers' compliance with the obligation to pay the tax.

The Tax Ordinance Act indicates that everything that may contribute to the clarification of the case, and is not contrary to the law, should be admitted as evidence. Evidence in tax proceedings may include, in particular, tax books, provided that they are kept in a reliable and non-defective manner, declarations submitted by a party, testimonies of witnesses, expert opinions, materials and information collected as a result of the inspection, tax information and other documents collected in the course of verification activities , tax control or customs and fiscal control and materials collected in the course of criminal proceedings or proceedings in cases involving fiscal offenses or tax offenses. It can be seen from the above list that the catalog of evidence is open and, if the given evidence is not inconsistent with the law, the taxpayer may present it in the course of tax proceedings.

Example 1.

In the course of the proceedings, the taxpayer refers to the facts established on the basis of illegal wiretapping of the contractor. Due to the fact that illegal recording is against the law, such evidence cannot be admitted by the authority.

It is also possible to confirm certain facts with the help of a certificate issued by a competent public authority or a declaration of a party submitted at its request, under pain of liability for making false statements.

Evidence from a witness testimony

As a rule, a witness is a natural person who has certain knowledge of the circumstances considered in the course of tax proceedings and is capable of perceiving and communicating.

The Tax Code contains a catalog of people who cannot appear as witnesses. As such, one cannot cite:

  • people unable to perceive or communicate their perceptions;

  • persons obliged to keep state or official secrets for the circumstances covered by this secrecy, unless they have been exempted from the obligation to keep it in accordance with the regulations;

  • as well as clergymen of legally recognized confessions as to the facts covered by the secrecy of confession.

As regards the right to refuse to testify as a witness, the legislator granted this right to the immediate family of a party to the proceedings, i.e. to the spouse, ascendants, descendants, siblings, first degree relatives, as well as to persons remaining with the party in relation to adoption, custody or guardianship. The right to refuse to testify continues despite the termination of marriage, adoption, custody or guardianship.

Example 2.

In the course of the proceedings, the tax authority called the taxpayer's former spouse as a witness. In this case, the spouse may refuse to testify as a witness.

The right to refuse to answer a question must be distinguished from the right to remain silent. A witness has the right to refuse if the answer could expose the witness or his relatives mentioned above to criminal or fiscal penal liability or result in a breach of the obligation to maintain professional secrecy protected by law. The authority conducting the proceedings decides whether a witness has the right to refuse to testify or the right to refuse to answer a given question.

Hearing a party to the proceedings

The Act also stipulates that the evidence in the proceedings may be information obtained as a result of hearing a party. However, in order to use this evidence, it is necessary to obtain the consent of the person acting as a party to the proceedings. All provisions relating to witness testimony shall apply to the questioning of a party, except for the possibility of coercive measures.

Expert opinion

An expert is a person called to express an opinion on a case, having special information, who has professional knowledge of the circumstances considered in the course of tax proceedings. The initiative to appoint an expert belongs to both the tax authority and the party to the proceedings. It is worth remembering that the Tax Ordinance gives the tax authority the freedom to use the expert's opinion when determining the facts of the case.

Sanctions applied to witnesses and experts

In the event that witnesses or experts do not perform the duties imposed on them, they may face appropriate sanctions. Well, the above persons, if, despite the proper request of the tax authority:

  • did not appear in person without a just cause, even though they were obliged to do so;

  • they unreasonably refused or failed to testify, issue an opinion, or present the subject of the inspection within the time limit specified in the summons;

  • they unreasonably refused to present or did not present within the prescribed period the documents the obligation of possessing pursuant to the provisions of law, tax books, accounting documents constituting the basis for entries in these books;

  • without the permission of the authority, they left the place of the operation before its completion

- may be punished with an order fine of up to PLN 2,800.

As stated above, this provision does not apply to the taxpayer heard as a party to the proceedings.

Example 3.

The taxpayer who was a party to the proceedings refused to provide explanations. For this reason, he cannot be punished with an order penalty. If, in a similar situation, the witness unreasonably refuses to testify, he or she may be sanctioned by this sanction.