Fiscal criminal law

Legal assistance in fiscal criminal matters

A response may already be needed at the authority's first activities, when the proceedings are not yet being conducted against any particular person. The starting point may be an irregularity identified in the settlements, a request to submit explanations, a summons for questioning or another activity of the authority. Before any decision is taken, it is necessary to know what the matter concerns, what stage it has reached and in what capacity the client is taking part in it.

If the irregularity has been identified early, the natural question concerns voluntary disclosure or a correction of a tax return, of the books or of the records — and whether they can still be relied on effectively. What these steps achieve depends on whether the statutory conditions are met and on the activities the authority has already carried out.

Where proceedings are already under way or charges have been presented, the focus shifts to the defence. I then analyse the substance of the charges, their legal basis and the evidence, take part in the procedural activities and develop the procedural position — in preparatory proceedings and, once an indictment has been filed, also before the court.

I provide legal assistance in fiscal criminal matters to businesses, members of management boards, persons responsible for the business or financial affairs of companies, and individual clients whose situation requires assessment under fiscal criminal law.

I handle cases irrespective of the place where the client carries on business, its registered office or the client's place of residence. The way we work together, and the need for defence counsel or the advocate to attend in person, are determined by the nature of the matter and the stage of the proceedings.

Before proceedings are commenced

Risk assessment, voluntary disclosure and correction of settlements

An assessment of whether an identified irregularity may give rise to the liability of a particular person, and of whether voluntary disclosure is available in the matter or a correction of a tax return, of the books or of the records can be made — together with the conditions on which the effects of these steps depend.

First contact with the authority

Summons, questioning and the presentation of charges

Assistance with the authority's first activities — establishing the capacity in which the person is taking part in the proceedings, preparation for questioning, and support after charges have been presented.

Proceedings and court

Defence in fiscal criminal proceedings

Defence in preparatory proceedings and before the court: participation in procedural activities, the procedural position and — where there are grounds for it — means of appeal.

Personal liability

The management board and persons responsible for financial affairs

Assistance in matters concerning the fiscal criminal liability of management board members and of other persons handling the business or financial affairs of an entity.

When can I help?

01

You have identified an irregularity in your settlements

An identified irregularity is first of all a question of fact: which obligation it concerns, who was responsible for performing it, and whether a public-law receivable has been depleted or exposed to depletion. Only those findings make it possible to assess whether the event matters under fiscal criminal law and what can be done about it.

02

You are considering voluntary disclosure or a correction of your settlements

Voluntary disclosure (czynny żal) and the correction of a tax return, of the books or of the records are separate mechanisms operating on different principles. Whether they can still produce the effects provided for in the Fiscal Penal Code in a given matter depends, among other things, on the activities the authority has already carried out — which is why the assessment should come before the action.

03

You have received a summons for questioning

The first step is to establish the capacity in which the person has been summoned, because that status determines their rights and obligations during the activity. That is why, before the questioning, it is also worth establishing the subject matter of the case, the course it has taken and the documents the questioning may concern.

04

Charges have been presented against you

The presentation of charges changes a person's position in the case: the person to whom they have been presented acquires the status of a suspect and may exercise the right of defence, including assistance from defence counsel. The direction of that defence is set by the substance of the charges, their legal basis and the evidence on which they are based, assessed against the course the proceedings have taken so far.

05

You hold or have held office on a company's management board

Holding office on a management board does not in itself determine fiscal criminal liability. What matters is the actual scope of duties, involvement in decision-making and in the settlements, the flow of information, and whether the conduct covered by the elements of a prohibited act can be attributed to a particular person.

06

You handle, or have handled, the business or financial affairs of another entity

The Fiscal Penal Code allows liability to be attributed also to a person who, on the basis of a provision of law, a decision of the competent authority or a contract, or in fact, handles the business affairs of another entity, in particular its financial affairs. Here too, liability is not determined by the name of the function or the wording of the contract — what must be examined is the actual scope of the activities entrusted or performed and their connection with the conduct covered by the charge.

07

You are considering voluntary submission to liability

Voluntary submission to liability is a particular way of concluding a fiscal criminal case, available only where the statutory conditions are met. Before an application is filed, it is worth assessing not only whether it is admissible, but also the consequences of this route — including for any subsequent defence.

08

The case has been referred to the court

Referral of the case to the court means that the charges are now determined not by the authority but by the court — on the basis of the indictment and the material gathered in the preparatory proceedings. A separate, prompt assessment is required where the first ruling served in the case is a penal order and a decision must be taken on whether to lodge an objection.

Scope of assistance

The scope of assistance depends on the stage of the matter: from an analysis of the grounds of liability and of the steps available before proceedings are commenced, through to the defence in preparatory proceedings and before the court.

Not every irregularity in a settlement entails the fiscal criminal liability of a particular person. The analysis requires the substance of the obligation arising under the law to be set against the actual course of events, the role of the individual persons involved and the rules on attributing liability.

establishing the obligations arising from the provisions applicable to the settlement or activity under analysis;
assessment of whether the conduct corresponds to the elements of a fiscal offence or of a fiscal petty offence;
assessment of the mental element of the act, including intent or negligence to the extent required by the applicable provision;
analysis of the client's role and of that of the other persons involved in taking the decisions or performing the obligations;
analysis of the grounds for attributing liability to a person handling an entity's business affairs, in particular its financial affairs;
a summary of the findings together with an assessment of what steps are available in the matter.

The right tool has to be chosen first: voluntary disclosure and the correction of a tax return, of the books or of the records are separately regulated and require separate assessment. What each of these steps achieves depends, among other things, on the type of irregularity identified, the moment at which they are taken, the authority's earlier activities and the performance of the obligations relating to the public-law receivable.

analysis of the nature of the irregularity identified and of its significance under fiscal criminal law;
verification of the conditions for relying on voluntary disclosure, including the significance of the moment at which it is filed and of the authority's earlier activities;
drafting of the notification filed as part of the voluntary disclosure, together with a presentation of the material circumstances of the matter;
establishing whether an obligation to pay a public-law receivable has arisen and by what deadline it should be paid;
assessment of whether a correction of the return, of the books or of the records that has been made may produce the effects provided for in the Fiscal Penal Code in the particular matter;
linking the voluntary disclosure or the correction with the other steps being taken in the matter.

The primary task is to establish the status of the person summoned, because it is that status which determines their rights and obligations during the activity. On that basis it is possible to prepare for the course of the activity and for its procedural consequences — with the participation of defence counsel or an advocate, if the status allows it.

analysis of the content of the summons, of the authority conducting the case and of the subject matter of the planned activity;
establishing the capacity in which the person summoned is taking part in the proceedings and the rights and obligations associated with it;
discussion of the course of the planned activity and of the rules governing participation in it;
ordering the chronology of the events and documents connected with the subject matter of the case;
identification of the procedural decisions that may prove necessary in connection with the activity;
attendance of defence counsel or an advocate at the activity, where this is permissible given the status of the person summoned;
assessment of what the course and outcome of the activity change in the matter.

The defence at this stage means building a position in response to the charges and taking an active part in the proceedings before the authority decides how to conclude them. The strategy follows from the circumstances of the particular case — there is no single strategy common to all proceedings.

analysis of the substance of the charges and of their legal basis;
analysis of the case file and of the evidence to the extent made available at that stage of the proceedings;
development of the procedural position and of evidentiary motions and other required pleadings;
participation in questioning and other activities involving the taking of evidence;
preparation of interlocutory appeals and other means of appeal against those rulings or activities of the authority which are open to challenge;
assessment of the way the preparatory proceedings are concluded and preparation of the defence for the court stage, if an indictment has been filed.

Assistance in this area has two stages: an assessment of whether this route is admissible in the matter and genuinely advantageous for the client, and then conducting the procedure — from the application through to the court's ruling.

establishing whether voluntary submission to liability is statutorily admissible in the matter;
analysis of the conditions relating to the public-law receivable, the fine, the costs of the proceedings and any forfeiture;
analysis of the legal effects of choosing this route, including the consequences of a final ruling;
drafting of the application for leave for voluntary submission to liability;
representation in the course of the proceedings before the financial authority conducting preparatory proceedings;
representation before the court in the proceedings for leave for voluntary submission to liability;
preparation and lodging of an interlocutory appeal with the authority superior to the financial authority conducting preparatory proceedings, if that authority refuses to file the application with the court.

At the court stage, assistance covers the whole of the proceedings before the court: the position on the indictment, participation in the hearings and in the taking of evidence and, once judgment has been given, an assessment of the grounds for challenging it.

analysis of the indictment and of the charges brought;
development of the defence position and of the required procedural pleadings;
formulation of evidentiary motions and of the position on the evidence presented by the prosecution;
participation in hearings and in the taking of evidence before the court;
presentation of the closing position of the defence;
analysis of the ruling given and assessment of the grounds for lodging a means of appeal.

A summons for questioning — first establish the capacity in which you are taking part

Once a summons has been received, it is necessary to establish which authority is conducting the case, in what capacity the person has been summoned and what the planned activity concerns. The capacity in which a person takes part in the proceedings determines the rights available to them and the obligations resting on them.

Before the questioning, what matters is an analysis of the course the case has taken so far, of the chronology of events and of the documents connected with its subject matter. This makes it possible to determine the procedural situation of the person summoned and the scope of the activity in which they are to take part.

If charges have been presented against a person, the further steps must take account of their right of defence, of the rules on giving explanations and of the participation of defence counsel in the proceedings.

To begin with, prepare

the summons you have received
the date and place of the activity indicated
your correspondence with the authority to date
documents concerning the events covered by the case

How I handle the matter

01 /

I establish the situation and the stage of the matter

I establish what the matter concerns, what stage it has reached and whether the authority has already carried out any activities. If proceedings are under way, I also determine the client's procedural situation and the issues requiring a response first.

02 /

I analyse the grounds of liability and the evidence

I analyse the grounds of any liability, the client's role, the documents and the evidence, and the course the case has taken so far. If charges have been presented, I also examine their substance and legal basis, so as to identify the key legal and factual issues requiring resolution.

03 /

We agree on the direction together

I set out the possible courses of action together with their consequences and risks, and recommend the one that best matches the client's situation and objective.

04 /

I carry out the agreed direction

Depending on the plan adopted, I draft the notification, the application or the procedural position, take part in the relevant activities and remain in contact with the authority, and in preparatory proceedings and before the court I conduct the client's defence.

Does your matter concern a tax settlement, an audit or a decision?

Assistance in matters concerning the correctness of tax settlements, tax audits and customs and fiscal audits, tax proceedings and challenges to decisions is a separate area of my practice. Tax law also covers cases concerning the liability of management board members for a company's tax arrears.

Tax law

Contact

Discuss your fiscal criminal matter

In a fiscal criminal matter, what counts is the nature of the event, the stage the matter has reached, and the steps the authority has taken so far and those taken by the client. Get in touch to discuss your situation, establish the scope of the assistance needed and how to proceed.

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