Białostockie Studia Prawnicze Zeszyt 28 nr 2
Artykuły:
Katarzyna Tomaszewska
Tax Confidentiality as a Limitation in the Procedure for Public Control of the State of Public Finances
DOI: 10.15290/bsp.2023.28.02.01
Abstract: Any control, regardless of the field to which it relates, requires information. This claim is also valid in the field of citizen’s control. For an individual to be able to effectively assess what is going on around him or her and make sound decisions on that basis, he or she must be able to obtain a variety of information, including, above all, information that is comprehensive public knowledge. According to what follows from the regulations of the Act of 6 September 2001 on access to public information, their catalogue is broad and, more importantly, open. Although on the surface it might seem that the individual does not need anything more, it should not be forgotten that the same legislator determines a number of restrictions that block or completely close the way to certain pieces of public information. This group of statutory restrictions includes tax confidentiality as defined by the Tax Ordinance Act of 29 August 1997. The main objective of the considerations undertaken in this article is to determine to what extent tax confidentiality by its very nature restricts the process of public scrutiny of the state of public finances, taking into account its subjective and objective scope and its positioning among all the premises limiting accessibility to public knowledge.
Słowa kluczowe: access to information, public finance, taxpayer
Zakres stron: 9-22
Anna Zalcewicz
New Technologies in the Control of Public Finances and Building Public Confidence in the State
DOI: 10.15290/bsp.2023.28.02.02
Abstract: This article addresses the directions of change in the area of control of the collection and distribution of public funds, in the context of the possibility of using new technologies, with a view to compliance with the legal standards of a democratic law-governed state and the challenges facing law-makers in properly legislating the use of AI. Issues related to the risks and threats posed by the implementation of new technologies in the public sector regarding technical (e.g. algorithmic bias) and legal (e.g. inadequate regulation of the possibility of using technology by a public administration) aspects are raised, bearing in mind that incorrect regulation of these issues is not without impact on trust in the state and ensuring the protection of democratic values. Analysing the issues related to the implementation of technological solutions to control public finances, it also indicates new areas for control in the public sector, for example the control of algorithm-based applications.
Słowa kluczowe: artificial intelligence, new technologies, public finance sector
Zakres stron: 23-35
Andrzej Gorgol
Krytyczne uwagi o ustawowym modelu kontroli celno-skarbowej
DOI: 10.15290/bsp.2023.28.02.03
Abstract: The National Revenue Administration should be equipped with procedural instruments so that it can carry out public tasks within the statutory competence of its bodies in a rational, efficient and effective manner. The founding of this new organisational structure was coupled with significant changes to the separate procedures hitherto used by the customs, tax and revenue control administrations subordinate to the Minister of Finance. Customs and revenue control is a new legislative concept, the design of which is based on the fundamental premise of unifying control proceedings. The Act on the National Revenue Administration reflects the organisational and procedural effects of the 2017 reform. An analysis of its provisions makes it possible to determine what model of customs and revenue control has been implemented in Poland. The unification and codification of the rules governing this procedure were neither complete nor free of the flaws of the earlier regulations. Not only have the errors of customs control and revenue control not been eliminated, but also new, highly controversial shortcomings have emerged. This study aims to demonstrate the truth of the thesis that both the customs and fiscal control model and its regulation by statutory provisions contain questionable solutions.
Słowa kluczowe: kontrola celno-skarbowa, administracja skarbowa
Zakres stron: 37-53
DOI: 10.15290/bsp.2023.28.02.04
Abstract: Pursuant to the provisions of the Tax Ordinance, if an anti-avoidance clause may apply in a tax control or a customs and fiscal control, the Head of the National Fiscal Administration (NFA), at the request of the control body, takes over such control in whole or in part and initiates tax proceedings within its scope. The control will be continued if no decision using the GAAR is issued in the tax proceeding carried out by the Head of the NFA. Detailed regulations define the procedure and effects of the Head of the NFA taking over control, but do not remove doubts related to the condition that it should take place as a result of an application to the Head of the NFA and the possibility of taking over the case only in part, and the effects of such partial takeover.
Słowa kluczowe: kontrola celno-skarbowa, klauzula przeciwko unikaniu opodatkowania, kontrola podatkowa
Zakres stron: 55-65
DOI: 10.15290/bsp.2023.28.02.05
Abstract:One of the powers of the Polish Constitutional Tribunal is the so-called abstract control related to the examination of the compliance of statutes (laws) with the Polish Constitution. The subject of these statutes may be tax matters. In recent years, the tribunal has repeatedly ruled on the consistency of such legal acts with the Constitution, including the reference to the provisions of the Law on local taxes and fees, which regulates a real-estate tax. Some of the rulings thereon were interpretive in nature, i.e. they indicated inconsistency with the Constitution within a specific understanding of the provision under verification. Their direct consequences were claims for excess tax made by real-estate taxpayers, which were envisaged by the procedures prescribed by the provisions of the law – the Tax Ordinance. In this regard, significant shortcomings of the above-mentioned act have been revealed. We may put forward a thesis according to which the procedure provided for in the Tax Ordinance for the recovery of excess tax in connection with the Constitutional Tribunal’s rulings is defective as, in particular, it does not take into account the rulings which are interpretative in nature. Verification of this research assumption requires the analysis of both the statutory provisions on the recovery of excess tax and the rulings of administrative courts that have been made thereon. The rationale for discussing this issue is its great practical importance, in particular, as indicated above, the fact that in recent years the judgments issued by the Constitutional Tribunal with regard to the Law on local taxes and fees regulating a real- estate tax have precisely been of an interpretative nature.
Słowa kluczowe: Trybunał Konstytucyjny, nadpłata, podatki, procedury podatkowe
Zakres stron: 67-80
Mariusz Popławski, Gábor Hulkó, Tetiana Iefymenko, Bogumił Pahl
Kontrola dokonywania zapłaty podatków lokalnych. Prawnoporównawcze studium przypadku
DOI: 10.15290/bsp.2023.28.02.06
Abstract: Tax payment is the basic form of fulfilling a tax obligation. It is included in the effective method of removing tax liabilities. As part of the control of payments of local taxes carried out by the tax authorities, it was found that an unauthorized employee of this authority unlawfully accepted payments of taxes that he did not pay to the account of the tax authority. A legal doubt has arisen in this respect as to whether the payment made in the above-mentioned circumstances is the payment of tax that gives rise to the removal of the tax liability. The main goal of the authors, within the research topic undertaken, is to verify the research hypothesis, according to which the taxpayer’s transfer of funds to an unauthorized employee of a tax authority, confirmed by a receipt, cannot be considered as payment of the tax. The study analyzes the above-mentioned issues on the basis, above all, of the provisions of Polish tax law, which do not define the concept of tax payment, although they indicate the forms of payment. In order to get a broader perspective on the subject matter, the author analyzed selected regulations concerning the above-mentioned issues in Hungary and Ukraine.
Słowa kluczowe: wygaśnięcie zobowiązania podatkowego, zapłata podatku, organ podatkowy, nieuprawniony pracownik organu podatkowego
Zakres stron: 81-97
Magdalena K. Fedorowicz
Legal Instruments for Control of Expenditure from the EU Budget in the Light of EU and Polish Law
DOI: 10.15290/bsp.2023.28.02.07
Abstract: This study reflects on the control of expenditure made from the EU budget through instruments regulated by EU and Polish financial law, and in a broader sense also on the protection of the EU’s financial interests on the expenditure side. The purpose is to present and engage in a dogmatic- legal analysis of the EU-national normative benchmark for the control of EU budget expenditure and to answer the question of its normative-axiological content, rightly taking into account the principle of the rule of law as the basic determinant of the performed control of EU budget expenditure, in accordance with the CJEU judgment C 157/21. It may justifiably be argued that the normative model of control of expenditure from the EU budget is a normative-axiological model shared by the EU and its Member States. It is hybrid in that it consists of a number of mechanisms and institutions (in the substantive sense) that are functionally interconnected. Effective implementation of the criteria of this normative benchmark (substantive, instrumental, procedural and axiological) presupposes functional links between EU and Polish regulations for the application of principles not only from Articles 317 and 325 TFEU, but also values and principles from Article 2 TEU.
Słowa kluczowe: budget of the EU, NextGenerationEU, rule of law in financial law
Zakres stron: 99-113
Jacek Wantoch-Rekowski, Elisabetta Tatì
Controlling the Spending of EU Funds in Italian and Polish Law Against the Background of EU Regulations
DOI: 10.15290/bsp.2023.28.02.08
Abstract: Spending from the budget of the European Union (EU) should be done correctly, in line with EU and Member State legislation. However, minor or major irregularities cannot be avoided in the disbursement of EU funds, so procedures must be in place to detect and eliminate them. Control procedures are key in this respect. This article reviews the EU regulations that apply to the control of EU spending and analyses the control concepts adopted in two Member States: Italy and Poland. The authors found that in these two countries, the control of EU spending is carried out by a number of actors. Solutions for improvement were identified. The authors find it reasonable to conclude that administrative controls on the use of EU funds in Italy and Poland can be considered as on the path of being effective and efficient.
Słowa kluczowe: control of EU expenditure, European Union budget, financial control in Italy, financial control in Poland
Zakres stron: 115-134
Damian Czudek, Michal Kozieł, Ewa Lotko, Marcin Tyniewicki
Controlling Public Expenditure in the Light of Constitutional Standards in Poland and the Czech Republic: Selected Aspects
DOI: 10.15290/bsp.2023.28.02.09
Abstract: This paper aims to answer the following research problem: what are the models of reasonable (proper) implementation of public expenditure arising from specific constitutional rules, and what are the standards for such spending? The authors present a thesis that the constitutional principle of legality, as well as the principle of public finance as a good which is protected constitutionally, sets general models, which consequently determine the standards of reasonable (proper) spending of public funds in the broad sense, i.e. in the context of legality and economy (purpose, economy, effectiveness and efficiency). Notably, these models and standards meet the postulate of complete financial control, i.e. at every stage of the budget procedure (budget design, planning and execution). The article uses so- called non-reactive research methods, based on the analysis of the content and availability of source information, i.e. theoretical and legal publications as well as legal regulations (especially constitutional ones) crucial from the point of view of the selected subject.
Słowa kluczowe: constitutions, control of public expenditure, judicial control, legal basis of public expenditure, principle of legality
Zakres stron: 135-155
Joanna M. Salachna, Urszula K. Zawadzka-Pąk
Prawne instrumenty kontroli społecznej w szwajcarskim i polskim samorządzie. Studium doktrynalnoprawne
DOI: 10.15290/bsp.2023.28.02.10
Abstract: One of the basic instruments of direct democracy is the referendum, which is particularly developed in Switzerland. In Poland, due to historical conditions, there is no tradition of using referendums; however, in recent years, the participation of citizens in public co-decision has started to be implemented through the instruments of governance (participatory democracy), i.e. the village council fund and participatory budgeting. Apart from the basic function, i.e. active participation in making public decisions, all the above-mentioned instruments should also fulfill another important role: it is social control in the financial sphere. Therefore, this study attempts to answer the following research question: do the instruments of direct and participatory democracy fulfil the function of social control in the field of public financial decisions, and if so, how? According to the adopted hypothesis, both the forms of direct and participatory democracy also constitute (contain) elements of social control of the activities of public authorities. And by their very nature, these legal instruments of social control are implemented in the form of ex ante external control. To verify this view, the study interprets the content of foreign and domestic acts of universally binding law (cantonal constitutions, statutory provisions).
Słowa kluczowe: budżet obywatelski, referendum, kontrola społeczna, fundusz sołecki
Zakres stron: 157-173
Sebastian Skuza, Robert Lizak
Sztuczna inteligencja umożliwia kontrolę finansów publicznych – przegląd inicjatyw amerykańskiego rządu federalnego
DOI: 10.15290/bsp.2023.28.02.11
Abstract: In this article, the authors assesses the scope of the use of artificial intelligence technology in the management of the US federal public finance system in the years 2019–2022, with particular emphasis on public finance control. This assessment is indispensable in answering the question of whether artificial intelligence, which is a relatively new technology, is used in the area in question, and to what extent, and most importantly whether, it enables the US federal administration to control public finances. In order to answer this question, a holistic review was carried out of American law standards from the last decade and government documents that directly regulate the issue of artificial intelligence, including the definition of artificial intelligence adopted for the first time in American law, but also a number of other hard law and soft law standards. Law files that are directly or indirectly related to AI. The above allowed the determination of the scope of the political and legal approach to artificial intelligence in the United States of America, as well as the extraction of many conclusions about the use of artificial intelligence and the challenges facing its development. In the opinion of the author, the added value of this publication is the preliminary answer to the question of whether artificial intelligence can change the paradigm of the essence of managing the public finance system.
Słowa kluczowe: sztuczna inteligencja, zgodność, ład korporacyjny, finanse publiczne, prawo publiczne, zarządzanie publiczne
Zakres stron: 175-195
Zbigniew Ofiarski
Kontrola obrotu złotem inwestycyjnym oraz złotem dewizowym w Rzeczypospolitej Polskiej – uwarunkowania i zasadnicze dylematy
DOI: 10.15290/bsp.2023.28.02.12
Abstract: Investment gold and foreign-exchange gold are special forms of gold in legal terms. The adoption of such a status is related to the regulation of the legal and factual circulation of gold and the performance of financial control in this regard, which at various stages of trading takes the form of tax, customs and fiscal or foreign-exchange control. The rules and procedure for controlling gold trading are regulated by the provisions of tax, customs, banking and foreign-exchange law. The aim of this study is to analyze and evaluate the applicable provisions of EU and national law regulating the scope of the regulation of gold trading and its control by tax, customs and fiscal authorities and the National Bank of Poland. The essence and application of the most important control instruments are presented, which are individual foreign-exchange permits, notification of the intention to transport gold across the state border, and special records and public registers kept by entrepreneurs. The hypothesis about the basic objectives (ensuring the safety of trading and preventing money laundering offenses) and additional purposes (collecting statistical data necessary to construct the assumptions of the state monetary system, tightening the tax system) of gold-trading control was positively verified. The research primarily used the dogmatic-legal method, and a complementary historical-legal method was used to present the main directions of the evolution of legislation in the field of regulating gold trading.
Słowa kluczowe: kontrola finansowa, obrót złotem, finanse publiczne, reglamentacja
Zakres stron: 197-214
Michał Mariański
Kontrola finansów publicznych w prawie francuskim. Wybrane aspekty instytucjonalne
DOI: 10.15290/bsp.2023.28.02.13
Abstract: This publication is a part of a study of the French Code des juridictions financières in the field of the institutional aspects of the control of public finances. The main purpose is not only to describe the specificity of the French legal system in this field but also to focus on the solutions and type of support institutions that were developed by the French legislator. The general control exercised by the Court of Auditors (Cour des comptes) and regional and territorial audit chambers (Chambres régionales et territoriales des comptes) can be more effective thanks to the so-called supporting institutions, such as the Court for Budgetary and Financial Discipline (Cour de discipline budgétaire et financière), the Supreme Council of Public Finance (Haut Conseil des finances publiques), or the Tribunal for Compulsory Contributions (Conseil des prélèvements obligatoires). This study and analysis of the provisions of the Code des juridictions financières related to the three above-mentioned supporting institutions may also be considered as the first step towards further in-depth analysis and research, and thus the possible application of structures and solutions that are present in French tax law by the Polish legislator or that of any other European country.
Słowa kluczowe: kontrola, Trybunał Obrachunkowy, prawo finansowe, prawo francuskie, dyscyplina finansów publicznych
Zakres stron: 215-227
Michal Radvan, Tereza Svobodová
Recurrent Property Tax Control in the Czech Republic
DOI: 10.15290/bsp.2023.28.02.14
Abstract: The aim of this article is to investigate the possibilities for tax offices in the Czech Republic to control recurrent property tax returns and the data contained therein. The hypothesis that the recurrent property tax control in the Czech Republic is unproblematic and that there is no need for any amendments in related tax law regulation has been mostly confirmed. However, there are still several minor issues (e.g. the renewal of cadastral records) where amendments to the existing legal regulation would be helpful There are also other much more problematic issues in the property tax regulation to be improved. The role of the immovable property tax in the Czech Republic is mostly marginal; the revenue is very low. The paper follows the IMRaD structure; in the research part, we firstly summarise recurrent property tax regulation de lege lata from the theoretical perspective. Secondly, we describe existing practical problems of recurrent property tax control as these problematic issues have been identified from structured interviews with tax office clerks. In the discussion, we critically analyse substantive and procedural tax law concerning the recurrent property tax with regard to controls carried out by the tax office, combining the theoretical background with practical experience. Synthesising the knowledge gained, we identify the strengths and weaknesses of de lege lata regulation and suggest amendments de lege ferenda.
Słowa kluczowe: property tax, recurrent property tax, tax assessment, tax control, tax return
Zakres stron: 229-243
Eva Tomášková
Control of State Debt in the Czech Republic
DOI: 10.15290/bsp.2023.28.02.15
Abstract: This article focuses on control of state debt in the Czech Republic. State debt contributes the most to the public debt. Although the Czech Republic is one of the countries with the smallest state debts in the European Union, it has also been the country whose debt has grown fastest year-on-year in the last two years. The aim of this article is to investigate the possibilities to improve control of state debt in the Czech Republic. It works with the hypothesis that control of state debt is problematic in the Czech Republic and needs some amendments related to state debt regulation. The article is divided into two parts. First, a theoretical overview of state debt is included, regulation de lege lata is summarized and the current situation relating to state debt during the Covid-19 pandemic is stressed. Second, research findings mentioned in the first part are analysed. By synthesizing these research findings, I suggest amendments de lege ferenda.
Słowa kluczowe: Covid-19 pandemic, Czech Republic, rules of responsibility, state debt
Zakres stron: 245-258