Criminal fiscal liability of an accountant - worth knowing

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Pursuant to Art. 4 and 5 of the Accounting Act, the head of the entity, unless separate regulations provide otherwise, shall be responsible for the performance of accounting obligations specified in the Act. However, the criminal fiscal liability of an accountant and accounting obligations, apart from the responsibility for carrying out an inventory by taking a physical inventory, may be transferred to another person upon their consent. Acceptance of liability by another person or entrepreneur should be confirmed in writing. However, this does not relieve management of the oversight accounting responsibility.

The term "manager of the entity" is understood as a member of the management board or other management body or a multi-person body (management board) who - in accordance with the applicable legal regulations, statute, contract or ownership law - is authorized to manage the entity, with the exception of proxies appointed by unit.

Criminal fiscal liability of the accountant

The fiscal penal liability of the accountant has been regulated by the Act - the Fiscal Penal Code, hereinafter the CC. Pursuant to Art. 9 § 3 of the Code of Criminal Procedure for fiscal offenses or fiscal offenses is also responsible as the perpetrator of the person who, on the basis of a legal provision, decision of a competent authority, contract or actual performance, deals with economic matters, in particular financial matters, of a natural person, a legal person or an organizational unit without legal personality .

Fiscal penal liability is borne only by natural persons. Legal persons and units without legal personality cannot be held liable. The condition of fiscal penal liability is the possibility of assigning the perpetrator of the fault at the time of committing the act. Only a person who has committed a given prohibited act culpably may be subject to fiscal penal liability.

The Fiscal Penal Code also indicates that the perpetration is responsible not only for the person who performs the prohibited act alone, but also in agreement with another person. The perpetrator is also the one who directs the execution of an act prohibited by another person or, by using another person's dependence on himself, orders him to perform such an act. Incitement is punishable by anyone who, who wants another person to commit a prohibited act, persuades him to do so.

Therefore, any natural person may be held criminally responsible, including the chief accountant dealing with bookkeeping.

Crime and tax offense

The Fiscal Penal Code defines two terms: misdemeanor and fiscal offenses. Fiscal penal sanctions depend on the classification of the committed act as an offense or a fiscal offense.

Pursuant to the provision of Art. 53 § 2 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 imprisonment.

A fiscal offense is an act prohibited by the code under penalty of a fine specified in amount, 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 lowest monthly salary at the time of its commission - in accordance with art. 53 § 3 of the Civil Code A fiscal offense is also another prohibited act, if the code so provides.

The amount of the penalty for a tax offense and a tax offense is specified in the following article: Penalties for tax offenses and offenses.

Bookkeeping and fiscal penal liability of an accountant

Books of accounts - in accordance with the Accounting Act - must be kept reliably, flawlessly, verifiably and on an ongoing basis. The book, in accordance with the provisions of Art. 53 § 21 of the Code of Commercial Companies, there is an accounting book, a tax book of revenues and expenses, records, a register, other similar recording devices, including cash registers, to be kept by the law. The book is therefore also a VAT register or a register of fixed assets.

Penal fiscal sanctions for defective and unreliable bookkeeping are specified in Art. 60 and 61 of the Civil Code.

If the person responsible for accounting, contrary to the obligation, does not keep the book or keeps it unreliable, i.e. contrary to the actual state of affairs, he / she is subject to a fine of up to 240 daily rates.

In a situation where he keeps the books defective, that is, contrary to the provisions of the law, he is subject to a fine for a tax offense.

Prohibition of practicing the profession

It should be pointed out that unreliable bookkeeping may, in specific situations, lead to a ban on practicing bookkeeping or holding the position of an accountant. The prohibition to practice the profession is ruled by the court on the basis of the provisions of the Penal Code, to which the Fiscal Penal Code refers.

Criminal fiscal liability of the accountant due to failure to submit the declaration

The criminal fiscal liability of the accountant may be incurred for submitting untimely declarations in the form of a fine, provided that he has the power of attorney to sign the declarations on behalf of the taxpayer and submit the declarations to the tax office in a timely manner. The concept of "declaration" should be considered in accordance with the provisions of the Tax Ordinance Act, where the declaration also includes declarations, lists and information to be submitted by taxpayers, payers and collectors under the provisions of tax law.

Pursuant to Art. 56 § 4 of the Code of Commercial Companies: "The penalty specified in § 3 is also subject to the taxpayer who, despite the disclosure of the subject or the tax base, does not submit a declaration or statement to the tax authority or the payer on time". At the same time, it is necessary to point out the judgment of the Supreme Court of 23 May 2002, ref. No. V KKN 426/00, in which we read:

"Entrusting tax settlements to professional third parties does not by itself eliminate the taxpayer's liability in the field of criminal fiscal law, but on condition that it is proved that he was aware of the possibility of a defective settlement and agreed to a settlement that would be inconsistent with the provisions of tax law".

In practice, for not submitting declarations on time, e.g. VAT-EU, NBP reports, or for failure to submit via electronic means of communication, e.g. PIT-4 or PIT-8C, the person responsible for their submission in the correct time and form instead of a fine for a tax offense committed has a mandate procedure initiated. As a result, the fine in such proceedings may not exceed twice the amount of the minimum wage, i.e. up to PLN 4,200 in 2018, and up to PLN 4,500 in 2019.

Active regret is the institution that allows to avoid responsibility for the mistake made. The taxpayer may evade liability if he notifies the tax authority, in writing or orally for the record, about the commission of the prohibited act. However, it should be remembered that active grief is ineffective if it is submitted when the tax office has already learned about a fiscal offense.

Invoices

The Fiscal Penal Code also specifies sanctions related to invoice trading.

Under the provision of Art. 62 § 3 of the Commercial Companies Code, the penalty of a fine of up to 180 daily rates shall be imposed on anyone who, contrary to the provisions on value added tax and excise duty, or the Tax Ordinance Act, does not keep a copy of the issued invoice or bill.

A fine of up to 180 daily rates is also provided for when an invoice or bill has not been issued, has been issued in a defective manner or has been refused (Article 62 § 1 of the Code of Commercial Companies).

On the other hand, whoever issues an invoice or bill in an unreliable manner or uses such a document, shall be liable to a fine of up to 720 daily rates or imprisonment or both, pursuant to Art. 62 § 2 of the CC.

Pursuant to Art. 62 § 4 of the Code of Commercial Companies, a person who, contrary to the provisions of the Act, makes a sale without the cash register or fails to issue a document from the cash register confirming the sale, is subject to a fine of up to 180 daily rates.

Taxes

Pursuant to the provision of Art. 54 § 2 of the Commercial Companies Code, a taxpayer who, by evading taxation, does not disclose to the competent authority the subject or base of taxation or does not submit a declaration, thus exposing a low-value tax to a depletion, is subject to a fine of up to 720 daily rates. The declaration should be understood as statements, lists and information to be submitted by taxpayers, payers and collectors under the provisions of tax law.

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Other selected sanctions

The accountant may also incur fiscal penal liability under Art. 80b of the tax penal code for failure to submit the financial statements or audit reports to the competent tax authority. The sanction for the above offense is a fine.

Failure to submit the identification or update notification on time constitutes a fiscal offense (Art. 81 of the Code of Commercial Companies).

It is also worth indicating sanctions for obstructing the performance of checking activities, tax control, customs and fiscal control or audit activities, including by not presenting a book or other document relating to business activity, or by destroying documents, hiding or removing them - fine up to 720 daily rates (Art. 83 § 1 of the Code of Criminal Procedure) or, in the event of a minor, the perpetrator of the prohibited act is subject to a fine for a fiscal offense (Art. 83 § 2 of the Code of Criminal Procedure).