Penal and fiscal consequences of not submitting SAF to the competent authority

Service-Tax

The tax ordinance obliges legal persons, organizational units without legal personality and natural persons conducting business activity to prepare and submit information to the competent authorities, inter alia, either at the request of the authority or independently on its own initiative, which results from applicable law.
An entrepreneur who keeps tax books with the use of computer programs is obliged, without the request of the tax authority, to provide the Head of the National Revenue Administration with information about the records kept by electronic means of communication. We are talking about a single control file for monthly periods by the 25th day of the month following each subsequent month, indicating the month to which this information relates. What are the penal and fiscal consequences of not submitting SAF to the competent authority?

Uniform control file

From a practical point of view, the uniform control file is a file containing a range of information about the entrepreneur. For example, these are data from accounting books, bank statements, records on VAT invoices, data from the tax book of revenues and expenses and others. In accordance with the above provision of the act, such a file should be sent to the authority within a specific date, the legislator obliged the taxpayer to submit the document, in this case specifically SAF-T every month, specifying the date on the 25th of each month.

Deadlines

The entrepreneur should remember that if the last day of the term falls on a Saturday or a statutory holiday, the last day of the term is considered to be the day following the non-working day or days, unless tax laws provide otherwise.

Example 1

December 25 is a public holiday, and the next day, December 26, is also a holiday, so if the entrepreneur sends SAF only on December 27, will the statutory deadline be met?

Yes, the entrepreneur should not have any doubts, since it is in accordance with the acton non-working days, both December 25 and December 26 is a non-working day, referring to the regulation resulting from the tax ordinance determining time limits, referring to Article 12 of the Act, in this case the date is moved to the next day after the day or days off work, so this day will be December 27. On the other hand, if December 27 was a Saturday, this date is still subject to "extension" and will be postponed to Monday, December 29.

Penal and fiscal consequences of not submitting SAF-T

Referring to the consequences of the obligation to submit SAF-T, it should be stated that since there is an obligation to provide the above information in a monthly system, failure to provide it to the authority must have consequences for the taxpayer - entrepreneur. The legislator is rational by definition, so if it imposes any specific obligations on the entrepreneur, failure to comply with them must cause some discomfort.

For this purpose, the Fiscal Penal Code Act was analyzed. Pursuant to Art. 80 § 1 of the above-mentioned Act - Who, contrary to the obligation, does not submit the required tax information to the competent authority within the time limit, is subject to a fine of up to 120 daily rates. The literature on the subject allows to recognize the tax information "There is all the information required by law about the events relevant to the determination of the amount of the tax liability. Contrary to, for example, declarations or tax returns obtained from taxpayers themselves, these are not statements of knowledge about events that are significant for the creation and amount of a tax liability ”.

We deal with the commission of an act regardless of whether the obligated entrepreneur has not provided the required tax information at all or has provided it, however, after the prescribed deadline. The act is committed by failing to fulfill the required obligation, therefore, if SAF is sent to the competent authority, but one week after the deadline, it can already be said that the characteristics of the above-mentioned act have been fulfilled.

Control

The appropriate analytical unit of the authority checks the fulfillment of the obligation to submit the required information. If any irregularities are found, the unit sends information to the Head of the Tax Office, who is obliged to inform the party about the initiation of the investigation. Practice shows that the Head of the Tax Office calls for the fulfillment of the obligation and for sending the outstanding SAF-T. If the entrepreneur fails to react, a decision will be issued to initiate an investigation into an act specified in Art. 80 § 1 of the Civil Code If the investigation proves, after analyzing the evidence, that the act was committed, the Authority will issue a decision on the presentation of charges.

No reaction from the entrepreneur

It is worth emphasizing a frequent question here, as to what will happen if the entrepreneur does not receive correspondence, does not intercede on the authority's summons? Can the authority bring charges against the entrepreneur without his presence?

Pursuant to the provisions of the law, the authority may apply proceedings against such entrepreneurs in relation to those who are absent. Such proceedings may be applied when the guilt of the perpetrator or the circumstances of the offense raise doubts, and when the accused of a tax offense is not in hiding after bringing the indictment to the court, and also when in the course of the proceedings before the court his place of residence or stay in the country was established.

Art. 173 § 1 PC stipulates that against the perpetrator of a fiscal offense or a fiscal offense residing permanently abroad or when his place of residence or stay in the country cannot be determined, the proceedings may be conducted in his absence. Practical considerations are largely in favor of the use of such a procedure, in particular, it is an adequate criminal reaction, speed of proceedings or minimization of the costs of proceedings from the point of view of, of course, the authority of the proceedings. In such cases, the authority often asks for the appointment of a legal defense lawyer for the suspect. Then the ex officio defender watches over the course of the proceedings by virtue of the law and under his obligations. If a motion for punishment is submitted to the court, the defense counsel is informed about all actions, has the right to submit evidence motions and take all other actions for the benefit of the accused.

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Prescriptive sentence

If the court finds that the evidence is sufficiently clear, it may issue a prescriptive order. The premise for the Court to issue a prescriptive judgment at the session in cases of misdemeanors in which it is sufficient to impose a reprimand, fine or restriction of liberty. The court decides without the participation of the parties. Adjudication in writ proceedings may take place if the circumstances of the act and guilt of the accused do not raise any doubts. When issuing a writ of payment, the court recognizes the evidence attached to the penalty application as disclosed.

The writ of injunction, which is sent to the party, as well as in the case of an appointed public defender (or by choice, if the parties have independently appointed one), has the right to object to the court that issued the injunction within 7 (seven) days of service. of this judgment. In the event of an objection, the injunction becomes invalid; the case is subject to general rules. The provisions do not impose any particular form of drawing up an objection or what it should contain. It is enough for a party to indicate that it opposes the issued judgment, which will already allow the effect of the prescriptive judgment to become invalid. It does seem logical, however, that if a party has evidence in its favor, it should be invoked at this point. Conducting the proceedings will then make sense.

The criminal threat that has been provided for this offense is a fine of up to 120 daily rates. As a rule, when imposing a fine, the court determines the number of rates and the amount of one daily rate; unless the code provides otherwise, the minimum number of rates is 10, the highest - 720. In the case of a prescriptive sentence, a fine may be imposed within the limits not exceeding 200 daily rates, unless the code provides for a lighter penalty. When determining the daily rate, the court takes into account the perpetrator's income, personal and family conditions, property relations and earning potential; the daily rate may not be less than one-thirtieth of the minimum wage or exceed four hundred times it. The approach to each accused is individual.

The analysis of the above case shows that the penal and fiscal consequences of not submitting uniform control files to the competent authority may be serious, because apart from the fact that the entrepreneur is threatened with financial consequences, it is always additional stress or time devoted to settling such a case.

Legal basis:

  • art. 23, art. 80 § 1, art. Article 173 of the Act of September 10, 1999, Fiscal Penal Code (Journal of Laws 2020, 19 t.j.);

  • art. 82 of August 29, 1997. Tax Ordinance (Journal of Laws 2019.900, i.e.).