Bialystok Legal Studies vol. 26 nr 4
Abstract: This article presents ten priority research problems in the scope of public finance control in Poland with a synthetic discussion of their aims. Implementation of the proposed research should serve a harmonious development of a part of financial law – called control of public finance. The article is mainly based on the Author’s own views and should encourage further scientific discussion on the mentioned topics.
Keywords: civil control, professional control, public finance control, public funds, public money, Supreme Audit Office (NIK)
Page range: 9-18
Leonard Etel, Dariusz Strzelec
On Evidence Preclusion in Tax and Control Procedures: a Comparative Legal Approach
Abstract: In the framework of tax collection procedures in different legal orders, various mechanisms may be introduced aiming at the implementation of the economy and the promptness of proceedings, which are aimed at observing the rule of evidence material concentration. One of the ways of securing it is the institution of so-called evidence preclusion, which constitutes a certain limitation on the possibility of referring to new evidence due to the stage of particular proceedings. The objective of the paper is to establish whether the institution of evidence preclusion in the tax procedure is necessary. One should search for the clues to answer the question presented through comparative legal studies. Implementing such a complex aim of research, we analysed legal regulations connected with the concentration of evidence material in selected states. So far, this question has not been a subject of a separate analysis. The results of the studies demonstrated that in the legal orders under analysis there are solutions, the aim of which is, to prevent lengthy proceedings and seeking that the resolution occur in the shortest possible time; if possible, without any harm for the actual and legal clarifying the matter. Evidence preclusion cannot be used by tax authorities as an instrument limiting the taxpayer’s right to a fair tax process.
Keywords: comparative law research, evidence in tax proceedings, evidence preclusion, tax audits, tax proceedings
Page range: 19-35
Abstract: The principle of proportionality plays a key role in shaping the principles of the tax law system, as it is an important element in the protection of taxpayer’s rights. The interpretation directive related to the principle of proportionality has a doctrinal, normative, and jurisprudential character. It is an EU and constitutional standard and should become a rule used on a daily basis in the practice of tax authorities. As a general principle of tax law, it is addressed to the legislative, executive, and judicial authorities. The article analyses the case law of the CJEU, the Constitutional Tribunal and the Supreme Administrative Court, which leads to the following conclusions. The CJEU quite often refers to the principle of proportionality in its jurisprudence and has developed a jurisprudence doctrine based on the doctrine of law. The Constitutional Tribunal, although in a limited scope, also employs the principle of proportionality. In disputes between tax authorities and taxpayers, Polish administrative courts apply the principle of proportionality using a pro-EU and pro-constitutional interpretation.
Keywords: Constitutional Tribunal, jurisprudence of the Court of Justice of the European Union, normative and doctrinal approach to the principle of proportionality, principle of proportionality, Supreme Administrative Court
Page range: 37-51
Marcin Tyniewicki, Michał Kozieł
Current Problems of Financial Law in Poland and in the Czech Republic Including Effects of the COVID-19 Pandemic
Abstract: It should be clearly stated that current pandemic of the COVID-19 virus has significantly impacted the public finances of many countries and considerably influenced the functioning of world’s economy. Allocation of public resources to prevent, or counteract, negative effects of the pandemic has taken various forms. Regardless of the extraordinariness of this situation, the possibility to use aid instruments depends on legislative changes and, thus, on the prior passing of appropriate legal provisions, since they determine the rules based on which these instruments are implemented. Poland, and the Czech Republic, have taken proper actions to combat the COVID-19 pandemic. Referring to the experience of both of these countries, it should be noted that legal and financial solutions used to counteract the pandemic have not always been conducted in accordance with constitutional norms, established financial law rules, or principles of conducting financial economy in the public finance sector. The Authors of this article, while evaluating these solutions, have decided to indicate certain general trends happening in the current financial law, which, unfortunately, are not always positive.
Keywords: debudgetisation, financial law autonomy, grant, public debt, special purpose fund
Page range: 53-71
Salvatore Antonello Parente
Rethinking the Indirect Taxation of Trust in the Reform of the Italian Tax System
Abstract: In Italy, among the priorities of the National Recovery and Resilience Plan (PNRR), a strategic position is taken by the tax reform, which is part of the actions to remedy the structural weaknesses of the country’s system and to stimulate economic recovery after the Covid-19 crisis. In this context, in order to design a new tax structure, in terms of economic growth and competitiveness, a legislative rethink of indirect taxation of trusts and other destination constraints is desirable. In fact, the current tax rules of these negotiation models, in addition to giving rise to numerous disputes, often discourage their use in regulating new interests and needs.
Keywords: indirect taxation, pandemic economic crisis, renewal of traditional taxation models, new taxation of trusts and other destination constraints
Page range: 73-93
Wojciech Morawski, Błażej Kuźniacki
The German-Polish Tax Problems of Cross-Border Workers in the COVID-19 Pandemic – When the Remedy is Worse than the Problem
Abstract: The article pertains to the tax issues arising from the COVID-19 pandemic in respect of cross- border workers. The main issue is the impact of the restriction in cross-border movements during the pandemic on the determination of the place of work. The authors refer to two situations. The first is when a Polish worker employed by a Polish employer and working abroad cannot return to Poland. The second is when he or she performs work at home in Poland instead of at the normal place of work abroad. The authors consider the legal fiction of carrying out work in the place where it would have been done before the pandemic as a rational solution. However, they are strongly critical of the introduction of such solution via the Mutual Agreement.
Keywords: COVID-19, double taxation, employment income, mutual agreement procedure (MAP)
Page range: 95-110
Electronic Signature of the Taxpayer in Times of COVID-19
Abstract: The aim of the article is to present the legal provisions used to identify taxpayers (and similarly other entities) using electronic communication in the times of COVID-19, in the light of the construction of public ICT systems for submitting declarations and applications. The COVID-19 pandemic accelerated the IT transformation, including the benefits of switching to digital tools, unless the legislator had already imposed an obligation to use electronic communication. For tax purposes, the range of possible signatures has not been limited to a qualified electronic signature, a trusted signature, a personal signature, and possibly a simple identity verification mechanism using an account in an ICT system secured only with a password. It is often used to sign the so-called “authorization data” (“tax data”). The new facilitations in the field of creating a trusted profile should translate into the popularization of the trusted signature, especially as there are more and more non-tax online services provided by public entities.
Keywords: COVID-19, electronic signature, e-sign, law, tax
Page range: 111-120
Abstract: In an effort to limit the effects of the COVID-19 epidemic determined by restrictions in economic activity and various areas of social activity, the catalogue of preventive actions was expanded by tax and legal instruments in the form of income tax reliefs inclining taxpayers to certain behaviours. The reliefs entitle taxpayers to deduct the value of donations made for the purposes of counteracting COVID-19 from the tax base. Two types of such donations have been distinguished, i.e., donations for entities participating in the treatment of infected persons and donations for educational institutions providing remote education. The aim of this article is to establish the premises justifying the claim that the tax reliefs for donations made by income tax payers are autonomous in relation to other tax preferences available to taxpayers making donations for other socially useful purposes. The hypothesis about the ad hoc and temporary nature of these tax reliefs has been verified as true, and the dominance of the motivating and stimulating function over their fiscal function has been demonstrated. Symmetrical solutions have been identified in the legal structure of the subject tax reliefs, as the donor uses a deduction from the tax base, while the recipient does not include the accepted donation in their income. The study uses the legal-dogmatic method and, in addition, the empirical analytical method to present the jurisprudence of courts in the field of applying tax reliefs due to donations made by income tax payers.
Keywords: COVID-19, free movement, public health, Schengen area
Page range: 121-138
Abstract: The effects of the COVID-19 pandemic in the form of a reduction in the own revenue of local government units and the corresponding reduction in their expenditure, including asset expenditure, were the determining factor for the introduction of extraordinary and temporary mechanisms to minimise this negative phenomenon from 2020. One of such solutions is the Government Fund for Local Investments, separated within the state special-purpose fund – the COVID-19 Counteracting Fund. The aim of this study is to establish the legal status of the Government Fund for Local Investments (Rządowy Fundusz Inwestycji Lokalnych – RFIL). The hypothesis about the temporary nature of this fund and its close relations with the COVID-19 Counteracting Fund has been verified as being true. It has been established that the RFIL does not have its own sources of revenue, and its financial resources are the result of separating a certain amount of funds accumulated in the account of the COVID-19 Counteracting Fund, which means it is, in fact, its sub-fund with clearly defined tasks to be performed. The RFIL-provided support is non-returnable, and its only beneficiaries are local government units. The resources transferred from this fund may only be used for the implementation of investment projects or for meeting asset expenses. The study uses the legal-dogmatic method and, additionally, the statistical analytical method, to present specific numerical values reflecting the importance of the RFIL support in relation to the own revenue of local government units.
Keywords: asset expenditure, COVID-19 epidemic, financial support for local government investments, local government, the Government Fund for Local Investments
Page range: 139-162
Jadwiga Glumińska-Pawlic, Tomasz Gwóźdź
Special Legal Solutions Introduced in Regard to the Relationship with COVID-19 Affecting Municipal Budgets – Selected Issues
Abstract: The article discusses the legal changes related to the finances of communes, introduced into the Polish legal order to counteract adverse social effects and the economic aspects of the SARS- CoV–2 epidemic. It indicates the impact of new regulations on the website revenue for the budgets of municipalities and the powers of municipal authorities concerning, first and foremost, budget control and implementation. The solutions that were presented in detail have the goal of helping entrepreneurs most economically affected by the pandemic – such as the possibility of exemption from real estate tax by resolution of the commune council for part of 2020 and selected months of 2021, an extension of instalment payment deadlines for real estate tax, or the failure to collect the market fee in 2021. Essentially, only some of these solutions provide for financial compensation from the commune budgets. The consequences for the budgets of communes related to the changes indicated, in the context of the need to perform their tasks.
Keywords: budget of commune, impact of COVID to local finances, public finances, real estate tax
Page range: 163-178
Edyta Rutkowska-Tomaszewska, Marta Stanisławska, Hien Thuc Trinh
Legal Instruments to Support Borrowers (Consumers and Entrepreneurs) in Connection with the COVID-19 Pandemic in Poland, and Vietnam
Abstract: The COVID-19 pandemic restrictions introduced in 2020 in many countries on economic activity and gainful employment have in many cases, reduced the incomes of individual households. As a result, the actual ability to meet credit obligations has declined, particularly for those who have lost their jobs or livelihoods. The COVID-19 pandemic has become a significant challenge for economies, national authorities, and entrepreneurs, including borrowers. This article aims to analyse the legal regulations in Poland, and Vietnam, introducing instruments to support borrowers, consumers, and entrepreneurs, in connection with the COVID-19 pandemic. The authors will present the legal basis for the instruments to support borrowers provided in the studied countries, indicate their legal nature, forms, and conditions of using them. They also compare legal solutions introduced in connection with the pandemic aimed at mitigating its adverse effects on borrowers in Poland, and Vietnam, to indicate whether cultural differences and differences in legal systems, as well as individual approaches to the domestic credit market, affected the choice of legal instruments for supporting borrowers in connection with the COVID-19 pandemic, or not.
Keywords: anti-crisis regulation, COVID-19, consumer credit, credit vacation, lender, trader
Page range: 179-212
Abstract: In Poland, the administration of justice, including in tax matters, is exercised by the provincial administrative court in the first instance, and the Supreme Administrative Court, as an appeal (cassation) court. In this article, its author discusses the repeatedly changing rules of conduct in tax matters before the Supreme Administrative Court during the COVID-19 pandemic (for the period 2020 – July 2021). The almost one-and-a-half-year duration of the pandemic allowed for the formulation of conclusions relating to both the legal solutions and the practice of litigation in tax matters before the Supreme Administrative Court during this period. In the work, the author presents his conclusions based on the judicature of the Supreme Administrative Court and the available statistical data on the completed court hearings and closed sessions, as well as resolved cassation complaints in tax matters. Keywords: covid-19 pandemic, Supreme Administrative Court, tax cases
Keywords: covid-19 pandemic, Supreme Administrative Court, tax cases
Page range: 213-226