Can active regret help us avoid being fined for a tax offense?


Committing a fiscal offense does not always have to result in liability for a specific criminal act. Situations in which the perpetrator of a fiscal offense may avoid the penalty are provided for in the second chapter of the Act of 10 September 1999, the Fiscal Penal Code (Journal of Laws No. 83, item 930), hereinafter: the Penal Code, which is called Failure to punish the perpetrator . Can a tax offense be avoided? What is active regret? We answer in the article!

Active grief

Active grief is the behavior of the perpetrator of an offense to seek to redress the damage or prevent the consequences of his act and may avoid punishment for a fiscal offense. In the case of fiscal offenses, this institution will mainly rely on activities aimed at reimbursement of the depleted public-law debt. This solution is intended to motivate citizens to fulfill their tax obligations. In return for the compensation of the depleted public law debt, the perpetrator gets a chance and may avoid punishment for a tax offense or misdemeanor.

In practice, the most common offense is failure to submit the declaration on time, or failure to pay or reduce tax liabilities. Usually these are mere mistakes that result from the taxpayer's distraction and are not deliberate. Then it is unlikely that the tax authority will bring the perpetrator to justice, as long as he has previously corrected his mistake. It should be borne in mind that if similar situations often occur to the taxpayer, the tax authority may take appropriate measures to discipline him.

Pursuant to Art. 16 § 1 of the Code of Criminal Procedure is not subject to punishment for a fiscal offense or a fiscal offense, the perpetrator who, after committing a prohibited act, notifies the prosecuting authority of this fact, revealing the essential circumstances of this act, in particular persons cooperating in its commission. After receiving the so-called the self-accusation act of the taxpayer sets the deadline for the payment of due public law receivable depleted by the committed prohibited act.

The use of the institution of active regret is possible only if the taxpayer pays the specified amount in full within the time limit set by the authorized body of the preparatory proceedings.

On the other hand, if the prohibited act does not reduce the amount due, and the forfeiture of the items is obligatory, the perpetrator should submit these items, and if it is impossible to submit them, pay their equivalent in money.

How is an active regret notification submitted?

The notification should be submitted in writing to the competent office or transmitted orally to the protocol.

The content of the notification should describe the circumstances of the case, acknowledge your guilt, and - if the perpetrator cooperated with other people in the commission of the act - indicate the accomplices.

When will active regret be ineffective?

Pursuant to Art. 16 § 5 and 6 of the CC, which is an active grief, the notification is ineffective and will not allow us to avoid a penalty for a tax offense if it has been submitted:

  1. at a time when the law enforcement authority already had clearly documented information about a fiscal offense or a fiscal offense;

  2. after the commencement of official activities by a law enforcement agency, in particular a search, verification activity or control aimed at revealing a tax offense or a fiscal offense, unless this activity did not provide grounds for initiating proceedings for this prohibited act;

  3. the perpetrator directed the execution of the disclosed prohibited act;

  4. the perpetrator, using the addiction of another person to himself, ordered her to perform the disclosed prohibited act;

  5. the perpetrator organized a group or association aimed at committing a fiscal offense or directed such a group or association, unless the notification referred to in § 1 was made with all members of the group or association;

  6. the perpetrator induced another person to commit a fiscal offense or a fiscal offense in order to bring proceedings against him for this prohibited act.

Active regret and interest

Active grief concerns the criminal law consequences of committing a prohibited act. In the event of a delay in the payment of public law receivables, active grief will allow the perpetrator to avoid a penalty for a fiscal offense, but does not release him from the obligation to pay statutory interest for the delay.

Active regret and the correction of the declaration

Another way to avoid penalties for a tax offense or misdemeanor is to submit a revised tax return. Pursuant to Art. 16a of the Code of Criminal Procedure is not subject to penalty for a fiscal offense or a fiscal offense, who filed legally effective, within the meaning of the provisions of the Act - Tax Ordinance or the provisions of the Act of 16 November 2016 on the National Revenue Administration (Journal of Laws, item 1947, with as amended 1)), corrected the tax declaration and paid in full, immediately or within the time limit set by the authorized body, the public law receivable depleted or exposed to depletion.

This means that the taxpayer will avoid a penalty if he / she has submitted a correction of the declaration and has paid the entire depleted tax debt within the deadline set by the authority, or did so earlier without being summoned. In such a situation, the taxpayer does not have to submit a notice containing active regret.

Errors or obvious errors caused by the fault of the authority or the payer

Taxpayers of personal income tax obtaining income only from payers (including pension authorities) may be settled by tax authorities. Then the tax office will complete the PIT declaration for them within 5 days of submitting the application, and then send the taxpayer a ready tax return for approval. The tax office will settle the taxpayer based on the data it has.

Based on Article. 16b of the Commercial Companies Code, it is possible to avoid a penalty for a tax offense or misdemeanor if the taxpayer who submitted the tax return contains errors or obvious errors caused by the fault of the tax authority or the payer.

This means that the taxpayer will not be liable for the reduction of public law receivables if it occurred as a result of an error or error committed by the fault of the tax office or the payer, when, for example, an employee of the tax office incorrectly completes the PIT return or the payer submits incorrect tax information to the office, on on the basis of which the tax office prepares the tax return.

In what situations can a tax offense be avoided?

There are situations in which the court determines the guilt of the perpetrator, issues a conviction, however, pursuant to Art. 19 of the Code of Criminal Procedure refrains from imposing a penalty. It should be emphasized that the decision in this respect rests with the court. The court, while remitting the perpetrator of the penalty, still has the option of imposing a criminal measure in the form of:

  • forfeiture of items;

  • collection of the monetary value of forfeiture of items;

  • forfeiture of financial benefits;

  • recovering the monetary value of the forfeiture of property benefits;

  • a ban on conducting a specific business activity, pursuing a specific profession or occupying a specific position;

  • making the judgment public;

- although it may also depart from the decision of a criminal measure.

In a situation where, in connection with a fiscal offense or a fiscal offense, there has been a reduction in public law receivables, the court may refrain from imposing a penalty or a penal measure only if the due amount has been paid in full before the judgment is issued. Wanting to count on the so-called grace law you must fulfill your tax liability.

The penalty may not be imposed in the event of:

  • fiscal offenses punishable by imprisonment not exceeding 3 years or a milder penalty, when the degree of social harmfulness of the committed act is not significant; when assessing the degree of social harmfulness of the prohibited act, the type and nature of the threatened or infringed good, the weight of the financial obligation infringed by the perpetrator, the amount of the diminished or subject to depletion of public law receivables, the manner and circumstances of committing the prohibited act and the form of the intention, the perpetrator's motivation, and the type of the breached are taken into account. precautionary rules and the degree of its violation.

  • tax offenses in cases that deserve special consideration, taking into account:

    • the nature and circumstances of the tax offense,

    • the perpetrator's personal characteristics and conditions

    • the perpetrator's behavior after committing the offense.

The described institutions of criminal law prove that it is possible to avoid punishment for a tax offense. The basic condition for using the chance to forgive a penalty is to compensate the depleted public-law debt.