Instruments sealing the tax system in the jurisprudence of administrative courts

Abstract

Actions taken by taxpayers – including the entrepreneurs – aimed at minimizing tax burdens are common and, in a sense, understandable. For these reasons, changes introduced to the tax law should take into better account the emerging risks of tax evasion. There is no doubt that tax evasion is contrary to the objectives of taxation; therefore it should and can be counteracted. The level of difficulty of the process of sealing the tax system in such a way that the constitutional requirements are met and bearing in mind compliance with EU law as well as the principles of legislative technique, have been proven by the recently introduced legislative changes in this area. This has also been confirmed by the issues related to the application by the administrative courts of the most important (also for the entire tax collection system) solutions introduced to the Tax Ordinance. Such solutions are the following: general clause against tax avoidance, the IT System (or: the Communication System) of the Clearing House (Polish abbrev. STIR) and Mandatory Disclosure Rules (MDR). As demonstrated by the analysis of the previous jurisprudence of administrative courts in the light of the use of selected instruments sealing tax collection in Poland, the conditions for their application should be examined ad casum in the context of specific factual circumstances. They should be examined not solely in terms of the rule-of-law-principle and the universality of taxation (Art. 83–84 of the Polish Constitution), but also in terms of the principle of trust (Art. 2 of the Polish Constitution as well as art. 121 § 1 of the Tax Ordinance). The latter points out that the tax proceedings in a democratic state of law shall be conducted regarding the principle of trust in taxpayers. It has been also emphasized in the case-law, that the principle of proportionality had to be particularly respected when introducing this kind of the legal solutions highly intrusive for taxpayers.