Supreme Court resolution on empty invoices
Applying for a VAT refund is not difficult - you just need to fill out and send the appropriate form to the tax office. Reality has shown that this facility is used by criminals by extorting the tax with the use of fictitious invoices.
According to a resolution of the Supreme Court, the receipt of an undue reimbursement of the tax difference, using the source documents without actually covering it, is a crime of money laundering. In other words, it is about putting money that comes from illegal activities into circulation.
While browsing websites, you can often come across advertisements in which someone offers to sell "blank invoices". These announcements do not necessarily have to be true - they are usually the result of provocation by law enforcement agencies.
Resolution of the Supreme Court
On December 18 last year, before the public opinion was absorbed by the reports from Ukraine and the Sochi Games, the Supreme Court - Criminal Chamber composed of seven judges adopted a resolution (reference number I KZP 19/13). It was later entered into the book of legal principles, which means that other members of the Supreme Court will be bound by it in similar cases.
The content of the resolution of the Supreme Court
1. The subject of the executive act of the offense specified in Art. 299 § 1 of the CC there are mentioned in this provision "means of payment, financial instruments, securities, foreign exchange values, property rights or other movable property or immovable property" derived directly or indirectly from the commission of a prohibited act;
2. The perpetrator of the offense specified in Art. 299 § 1 of the CC there may also be a perpetrator of a prohibited act, the commission of which is associated with an advantage constituting the subject of an executive act.
It must be admitted that this resolution is a precedent, as previously there was no clear position regarding the recognition of specific activities as money laundering. In addition, it is worth noting that the taxpayer is now criminal liability, which extends the scope of work of prosecutors.
Art. 76 § 1 of the Polish Fiscal and Penal Code Who, by providing data inconsistent with the actual state of affairs or concealing the actual state of affairs, misleads the competent authority, risking an undue reimbursement of public-law tax receivables, in particular input tax within the meaning of the provisions on tax on goods and services, excise duty, reimbursement of overpayment or its crediting towards tax arrears or current or future tax liabilities shall be punishable by a fine of up to 720 daily rates or by imprisonment, or both.
Art. 299 § 1 of the CC Whoever means of payment, financial instruments, securities, foreign exchange values, property rights or other movable property or real estate, derived from the benefits related to the commission of a prohibited act, accepts, transfers or exports abroad, helps to transfer their property or possession or undertakes other activities which may frustrate or significantly hinder the determination of their criminal origin or place of location, their detection, seizure or forfeiture, shall be subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years.
Do you run a company and have questions?
Take advantage of the expert advice of the Entrepreneur's Guide
Online advice for businessesThe described resolution of the Supreme Court expressly states that the subject of this practice may be values derived directly and indirectly from the underlying prohibited act, which under the Fiscal Penal Code will be fraud (Art. 76).
Effects of the resolution in business transactions
The effects of the Supreme Court's resolution cannot be overestimated or ignored. It is important to know that the Supreme Court increased the scope of entities that could be held liable under the Penal Code. It follows that participation - even to a small extent - in a crime of money laundering (through a fictitious invoice) is liable to the same liability as the recipient of the profits from the underlying crime.