Białystok Legal Studies vol. 24 nr 3
Articles:
Andrzej Melezini, Krzysztof Teszner
Customs and Tax Control – Selected Political and Procedural Aspects
DOI 10.15290/bsp.2019.24.03.01
Abstract: The effect of the modernization of the public finance administration, which consists of the consolidation of the previous organizational structures of the tax, customs and control administration, was the establishment of The National Revenue Administration from 1 March 2017. The authors focus on the presentation and assessment of selected legal elements of customs and tax control, characterizing and distinguishing it from other applicable procedures for monitoring the performance of obliged entities due to public law, in particular tax control – regulated by the provisions of Section VI of the Tax Ordinance and control of entrepreneurs – regulated by the rules included in Chapter 5 of the Act – Entrepreneurs’ Law. The authors emphasize that customs and tax control is a procedure that uses not only typical legal instruments known to administrative law, but also instruments specific to the operations of the police and intelligence agencies. It is also worth noting that this is not a control procedure that could be applied by heads of tax offices, in whose jurisdiction the right to conduct tax inspections and audits lies. On the one hand, the authors point to the autonomy of the newly established control procedure, and on the other, they note the dualism of control procedures focusing on the verification of the same subject areas.
Keywords: control, tax administration, tax body, tax proceedings
Page range: 13-25
Anna Reiwer-Kaliszewska, Tomasz Nowak
Customs and Tax Control of Entities Operating on the Fuel Market in the Scope of Excise Duty and Fuel Charge as well as Tax on Goods and Services
DOI 10.15290/bsp.2019.24.03.02
Abstract: The article discusses the issues of fuel market control in the field of excise duty and fuel tax as well as VAT before the establishment of the National Fiscal Administration and changes to the structure of the fiscal authority and their impact on the efficiency of collection of these levies. The merger of the tax system with the parallel introduction of legislative changes limited the activity of the grey economy on the fuel market and resulted in the increase in inflow to the state budget from the fuel industry in 2017. This was not only due to the excise and fuel charge, but mainly to VAT. The emergence of these positive, related phenomena was possible due to a uniform approach to both excise duty and fuel charge as well as VAT. Criminal proceedings often consisted of paying excise duties and customs duties, but not paying VAT. Among others, this was possible due to the inconsistent control system of the fuel market, where excise duty and fuel charge control were exercised by customs authorities and VAT by the tax and fiscal control authorities. The legislative changes that entered into force on 1 March 2017 have eliminated this incoherence.
The merger of tax and control procedures for entities from the fuel industry in one organization, which could be the head of the customs and tax office, should result in an increase in tax revenues to the state budget.
Keywords: excise tax, fuel tax, VAT, National Tax Administration, customs and tax control
Page range: 27-38
Krystian Jaszczyk
Risk Management in Units of the Public Finance Sector by Means of Management Control
DOI 10.15290/bsp.2019.24.03.03
Abstract: The ability to manage risk is an important element of public finance sector governance. It is possible due to the appropriate identification of risk and the use of instruments that allow its management. One such instrument is the institution of management control which improves the governance of public finance sector entities in terms of a managerial model
The aim of the article is to analyse management control in the scope of risk management within the public finance sector. Therefore, the research has been formulated to answer the question: is it possible to manage risk in units of the public finance sector through management control? According to the research hypothesis, management control is a capable institution in this regard.
The article presents, not only the institution of management control but also shows the types of risk involved and the management mechanisms available for controlling them.
Keywords: risk, risk management, management control
Page range: 39-52
Zbigniew Ofiarski
The Essence and Scope of the Control Performed by the Bank Guarantee Fund
DOI 10.15290/bsp.2019.24.03.04
Abstract: The catalogue of the Bank Guarantee Fund’s tasks also includes the performance of controls in relation to the entities included in the deposit guarantee system, especially to national banks, branches of foreign banks conducting activities in Poland and cooperative savings and credit unions. The control actions of the Bank Guarantee Fund are above all related to its tasks consisting in the guarantee of the solvency of the above-mentioned entities and their restructuring in the usual and compulsory course. There are three areas of the Bank Guarantee Fund’s control activity, which consider the correctness of: the data included in the calculation systems of the entities included in the guarantee system, the use of aid and support in scope of restructuring cooperative savings and credit unions, the actions of the bridge institution formed in order to conduct a compulsory restructuring of entities included in the deposit guarantee system. In the first and second areas the Bank Guarantee Fund performs the control independently, and in the third area it can perform the control mutually with the Polish Financial Supervision Authority.
Keywords: control, Bank Guarantee Fund, deposit guarantee system, restructuring
Page range: 53-65
Adam Piotr Chociej, Piotr Woltanowski
Control Over the Implementation of Operational Programs by Managing Authorities in the Context of the Protection of the Financial Interests of the European Union
DOI 10.15290/bsp.2019.24.03.05
Abstract: The protection of the Union’s financial interests takes place on many levels. It covers EU expenditure and revenues and involves both EU and national institutions. Among the institutions protecting the EU financial interests in expenditure, the managing authorities of operational programs play an important role, as they first have contact with beneficiaries of EU funds and are the first to verify the documents they submit, including applications for payment. During the verification process, irregularities or fraud affecting the Union’s financial interests may be found. The Member States are obliged to inform the European Commission of any irregularities or fraud discovered. In recent years irregularities in the area of cohesion policy have contributed the most to irregularities reported to the European Commission. This study will analyze the legal bases of controls carried out by the managing authorities and statistical data on irregularities and frauds reported by Poland to the European Commission in 2013-2017.
Keywords: European Union, irregularities, fraud, managing authority
Page range: 67-83
Małgorzata Ofiarska
Regulations for Internal Control of Public Finances in the Law on the Metropolitan Union in the Silesian Voivodeship
DOI 10.15290/bsp.2019.24.03.06
Abstract: The metropolitan union in the Silesian voivodeship, formed in 2017, is an organizational unit of the public finances sector. It participates in the processes of gathering and spending public means subject to internal control (conducted by the union’s authorities) and external control (conducted by the Regional Accounting Chamber and the Supreme Chamber of Control). This work includes the analysis and evaluation of legal regulations, doctrine and judicial decisions within the scope of the internal control conducted by the union’s assembly, its management and its treasurer. It has been recognized that the internal control system complies with the criteria of correctness defined by the provisions of the law on the metropolitan union in the Silesian voivodeship and the law on public finances. It’s crucial element shall be the control of the union’s budget outturn. The union’s authorities and treasurer shall be engaged in the control. Culmination of the control process is the resolution of the union’s assembly on granting or not granting discharge to the union’s management.
Keywords: financial control, discharge, metropolitan union, metropolitan union’s authorities and treasurer
Page range: 85-97
Adam Drozdek, Katarzyna Machalica-Drozdek
The Principle of Abuse of Law and Tax Fraud in VAT
DOI 10.15290/bsp.2019.24.03.07
Abstract: The fight against tax fraud and tax abuse is the fundamental principle of every European Union Member State resulting from the well-established case law of the Court of Justice of the European Union. This is also the purpose of the law-making process on value added tax laid down by the EU bodies.
The CJEU case law referred to in this study shows that abuse of law is a form of tax avoidance, with a new, strictly defined meaning given by the CJEU on VAT, which is completely different from tax fraud. Tax fraud is the taxpayer’s deliberate evasion of tax liability by fraudulent means. Making conscious decisions, the taxpayer violates the tax law regulations by intentional actions.
The purpose of this study is to identify the relationships between the principle of abuse of law and tax fraud under the Act on Goods and Services.
Keywords: the principle of abuse of law, tax fraud, VAT
Page range: 99-112
Karina Panomareva
The Implementation of BEPS Actions in The Russian Federation
DOI 10.15290/bsp.2019.24.03.08
Abstract: The author comes to the conclusion that the development of legal regulation on issues of international cooperation in the area of taxation and the exchange of tax information allows us to positively characterize the process of using the best modern tax practices by the Russian Federation.
The main directions of implementation of the BEPS Action Plan in the Russian Federation are considered in the article. The author highlights areas of legal regulation of tax relations, most affected by international economic integration and foreign tax practice. These are CFC rules and tax residence of legal entities, national anti-abusive rules (foremost of which is Article 54.1 of the Russian Tax Code which can be characterized as a new Russian GAAR), thin capitalization rules, administrative assistance and the exchange of tax information. The role of the OECD acts in Russian tax law is brought into light and an analysis of implementation of certain BEPS measures in the Russian Federation is provided. The aim of the article is to show and analyze the ways and perspective of implementation of the BEPS Action Plan in the Russian Federation. The author uses methods of theoretical analysis, particularly the theory of integrative legal consciousness, as well as legal methods, including formal legal method and comparative law. The legal regime of taxation of profit and income in the Russian Federation is influenced by many factors, including the internationalization of tax law.
Keywords: tax law, direct taxes, corporate income tax, personal income tax, BEPS, anti-avoidance measures
Page range: 113-123
Ewelina Bobrus-Nowińska
General Principles of Law and Tax Procedure as a Source of Protection of the Taxpayer’s Rights
DOI 10.15290/bsp.2019.24.03.09
Abstract: In the Polish tax law system, general principles of law and tax procedure play an extraordinary role in the taxpayer’s rights protection structure. Their importance is difficult to overestimate in the context of frequent doubts related to the practical aspect of compliance with tax law provisions. This is because the principles constitute the axiological basis for the functioning of the law. Additionally, during the period of dynamic changes in regulations, the role of the principle of legal certainty or the principle of the citizens’ trust in government becomes more important. This is because it is difficult to reconcile the principle of legal certainty with the situation when the legislator decides to terminate the interpretation without giving detailed grounds for doing so and referring only to the institution of tax avoidance. The practice involving suspending the limitation period by an authority in connection with instituting penal and fiscal proceedings, when it was instituted without grounds, is also unacceptable. Such attitude explicitly contradicts the principle of carrying out proceedings in a manner that creates trust in the authorities. Planned amendments aimed at organising the institution in question should be considered positive. At the same time, in order to ensure proper protection of the obligated party (including a taxpayer), it is highly desirable to formulate the principles that are not expressed in currently binding regulations, but which can otherwise be derived from the provisions of the Constitution of the Republic of Poland.
Keywords: general principles, taxpayer’s rights, principle of legal certainty, principle of trust in government
Page range: 125-136
Bartosz Borowik
Customs and Tax Control of Entrepreneurs as a Factor Influencing the Level of Economic Freedom in Poland
DOI 10.15290/bsp.2019.24.03.10
Abstract: This contribution deals with the analysis of the impact of changes in the fiscal control institution of entrepreneurs in Poland. The new legislation combined administrative tasks in one institution previously held by the tax and customs administration and fiscal control. Initially, the planned reform of the customs and tax administration was to constitute only the reconstruction of the organizational structure of tax offices, fiscal control offices and customs services. In practice, the newly established National Tax Administration took over the competences of entities appointed on the basis of the previously applicable Act on fiscal control, additionally extending the powers of that body. The National Tax Administration, has gained the extension of existing control powers, which in practice may surprise many taxpayers, forcing them to attach more importance to the documentation of their company than to the development of business potential.
Keywords: law, legal economic, legal institutions
Page range: 137-144
Zbigniew Ofiarski
The Condition of “Reasonable Fear” in the Polish Procedure of Securing the Performance of Tax Liabilities
DOI 10.15290/bsp.2019.24.03.11
Abstract: This work analyses the provisions of Art. 33(1) of the Tax Ordinance Act, case law, and the achievements of the tax law which regulate the condition and criteria of securing the performance of a tax liability against the taxpayer’s properties in Poland. The main purpose is to confirm the hypothesis that the condition of “reasonable fear” of a failure to perform this liability by the taxpayer is a vague term; an attempt to make it more precise in the act by specifying an open list consisting of two criteria (a permanent failure by the taxpayer to perform their due liabilities to the treasury or disposal by the taxpayer of their property to make enforcement more difficult or impossible) enables tax authorities to issue decisions on securing the performance of such a liability quite freely. The option by tax authorities to use other so-called non-statutory criteria in this area has been criticized as they violate the general principles of tax proceedings (including the principle of conducting tax proceedings in a manner that generates trust in the tax authorities and the principle of explaining to concerned parties the reasons for the conditions the authorities apply when conducting a case). The work uses the dogmatic-legal method and, supplementary, an empirical-analytic method.
Keywords: Tax liability, security, taxpayer’s property, fear of a failure to perform a liability
Page range: 145-156
Richard Bartes
Legal Institute of Advance Tax Rulings
DOI 10.15290/bsp.2019.24.03.12
Abstract: This paper deals with the legal institute of advance tax rulings in the Czech Tax Code, which comparatively is moderately used by Czech tax entities – both natural persons and legal persons. The main aim of the contribution is to confirm or disprove the hypothesis that the legal institute of advance tax rulings is not just another form of tax consultancy. On the contrary, this legal institute is an independent instrument paid for by the taxpayer and which aims at offering the taxpayer assistance during the process of the tax administration. It can be summarised that the legal institute of advance tax rulings is an instrument for solving problems in the interpretation of tax law because it provides the possibility to request the tax administration to issue a decision stating under obligation how the tax law would be interpreted. The research methods used in the paper are analysis and synthesis, description and comparative methods.
Keywords: tax law, advance tax rulings, tax code
Page range: 157-164
Urszula Kinga Zawadzka-Pąk, Eva Tomášková
Legal and Axiological Aspects of Participatory Budgeting Procedure in Poland and the Czech Republic
DOI 10.15290/bsp.2019.24.03.13
Abstract: The aim of the paper is to analyse the impact of participatory budgeting (PB) principles and procedures on public values. PB means a year-long decision-making process through which citizens negotiate among themselves and with local government officials, generally in organized meetings, and then vote over the allocation of local spending. We hypothesis that PB legal principles and procedures are not axiologically neutral but they do have a positive or negative influence on public values. We base our analysis on the case of two cities, taking the criterion of their similarity regarding ranking position in terms of the number of inhabitants and the percentage of the city budget allocated for the participatory budget, i.e. Kraków (Poland) and Brno (Czech Republic). For the analysis we use the category of nodal public values comprising: human dignity, sustainability, citizen involvement, openness, confidentiality, compromise, integrity, and robustness. Our research has confirmed that the PB principle and procedures are not axiologically neutral but sometimes they have positive and sometimes negative influence on public values. That will allow, in the next step of research, to determine the legal regulations that would strengthen particular public values via the PB procedure and, by this means, to enhance accountability for the spending of local funds.
Keywords: participatory budgeting, values, legal norms, Kraków, Brno
Page range: 165-175
Ewa Lotko
Participatory Budgeting in Russia – Procedural Aspects
DOI 10.15290/bsp.2019.24.03.14
Abstract: Participatory budgeting is nowadays the most widespread instrument of participatory democracy in the world. It appears in states with an established democratic system, in countries where democracy is being broken as well as in non-democratic states. Among the countries of Central and Eastern Europe it has probably developed to the biggest scale in Poland. In second place is Russia. According to the idea, participatory budgeting procedure should be based on democratic principles which include: social justice, citizen control, education, transparency and responsibility. Comparative research has indicated that participatory budgeting may be an instrument enhancing democracy, but may also be a tool used in a wider political game. This article is an attempt to answer the question of whether the participatory budgeting procedure used in selected administrative units in Russia encourages residents to engage in local problems and strengthens democracy or on the contrary it does not bring any positive effects, giving only a false sense of democracy.
Keywords: participatory budgeting, participatory budgeting procedure, Russia, co-financing
Page range: 177-185
Elena Chernikova, Tatiana Nikolaeva
Constitutional and Legal Regulation of Financial Relations and Procedures in Russia
DOI 10.15290/bsp.2019.24.03.15
Abstract: This article is devoted to the constitutional regulation of financial relations in Russia. The purpose of the study is to analyse the current state of the constitutional regulation of national economic relations and financial procedures existing in the state, as well as to evaluate twenty-five years of experience in implementing Russian constitutional provisions in practice.
The authors have described the basic constitutional provisions on finance, classified the sources of Russian financial law, reviewed the constitutional and legal status of the authorities involved in financial relations, and analysed the constitutional obligation to pay taxes and fees. They have also specified its main characteristics and examined two norms enshrined in the relevant constitutional article: paying taxes and fees provided only by law, and prohibiting retroactive legislation that worsens the taxpayer’s position, taking into account the practice and legal positions of the Constitutional Court of the Russian Federation.
When writing the article, the following scientific methods were used: analysis and synthesis, deduction, method of concrete sociological research, systemic, structural-functional, hermeneutic, synergetic, comparative legal and other methods.
Keywords: Constitution of the Russian Federation, law, financial relations, Central Bank, Russian Audit Chamber, tax liability
Page range: 187-196
Reviews:
Sławomir Presnarowicz
Eugeniusz Ruśkowski,
Public Finances and Financial Law. Legal and Financial Instruments, and Conditions of their Application, Publisher TEMIDA 2, Białystok 2018, pp. 303
DOI 10.15290/bsp.2019.24.03.16
Page range: 199-204