Preventing control in the company - what penalties may be imposed?

Service-Tax

Entrepreneurs are obliged to properly settle accounts with the state. The tax authorities supervise the correctness of the settlements. Taxpayers are required to enable the authorities to carry out checks. The penalty for preventing control may be severe.

Control of the entrepreneur - rules of conducting the control

The Entrepreneurs' Law Act defines the rules for conducting control of an entrepreneur. Such regulation means that its provisions become the basis for almost all inspections that may be carried out at the entrepreneur's premises.

Entrepreneurs are notified not only of the intention to initiate a tax audit, but also of any other audit concerning their business activity. After the entrepreneur has been successfully served with the notification of the intention to conduct an inspection, it may be initiated not earlier than after 7 days and not later than 30 days from the date of delivery of the notification.

It is also possible to initiate an inspection within 7 days from the date of delivery of the notification. However, this can only take place at the request of the entrepreneur.

The regulations provide for cases in which entrepreneurs will not be informed about the inspection. This will take place, for example, when:

  • the inspection is justified by a direct threat to life, health or the environment;

  • the entrepreneur has no home address or registered office address, or the delivery of letters to the addresses provided was ineffective or difficult.

On the other hand, carrying out control activities after presenting the official ID applies only to the following cases:

  • when control activities are necessary to prevent the commission of a crime or offense, counteract the commission of a tax offense or tax offense or to secure evidence of its commitment,

  • when the inspection is justified by a direct threat to life, health or the environment.

In the event of commencement of control activities after presenting the official ID card, before taking the first control action, the undertaking taking the control is obliged to inform the controlled entity or the person against whom the control activities were undertaken about their rights and obligations during the control.

Responsibilities of the controlled

The basic duties of the controlled entity include:

  1. enabling filming, photographing, making sound recordings and recording the facts using other information carriers, if the film, photo, recording or information recorded on another medium may constitute evidence or contribute to the consolidation of evidence in the case being the subject of the inspection;

  2. providing, at the request of the inspector, a translation into Polish of the documentation drawn up in a foreign language on the matters being the subject of the inspection;

  3. the controlled entity is obliged to:

    1. provide any explanations regarding the subject of the inspection,

    2. provide the inspector with the requested documents and

    3. provide the inspector with working conditions, including, if possible, an independent room and place for storing documents;

  4. persons authorized to represent the controlled entity or conduct its affairs, employees and persons cooperating with the controlled entity are obliged to provide explanations regarding the subject of the control, to the extent resulting from the performed activities or tasks;

  5. the inspectors are entitled to enter the premises of the controlled unit and move around this area on the basis of an official ID card without the need to obtain a pass. They are also not subject to a personal audit provided for in the internal regulations of this unit; however, they are subject to the provisions on health and safety in force in the inspected unit.

Sanctions for preventing control

Pursuant to Art. 83 § 1 of the Fiscal Penal Code who prevents or obstructs the performance of an official activity by a person authorized to carry out checks, tax control, fiscal control or control activities, in particular who, contrary to the request of that person, does not present the book or other document concerning the conducted activity business or a book or other document destroys, damages, renders useless, conceals or removes, is punishable by a fine of up to 720 daily rates.

By hindering the performance of official activities is understood as such behavior that violates the normal course of activities performed by the office.

Defusing or obstructing control generally consists in failure to comply with the obligations imposed on the inspected party, e.g. not admitting to the company's premises or providing documents.

This provision covers all types of broadly understood control activities, that is:

  • checking activities,

  • tax audit,

  • fiscal control.

When determining the daily rate, the court takes into account the perpetrator's income, personal and family conditions, property relations and earning potential. Nevertheless, the daily rate cannot be lower than one-thirtieth part of the minimum wage or exceed it (that is 1/30) four hundred times.

In 2018, the daily rate ranged from PLN 70 to PLN 28,000.