Tax mandate - do you have to accept it?
An entrepreneur must accept a tax ticket in a situation when the act committed by him is characterized by significant social harmfulness and was committed intentionally. It follows that in some situations it may refuse to accept a fiscal mandate.
Tax mandate and the negligible social harmfulness of the act
Offenses committed by taxpayers are graded in terms of the social harmfulness of the act. So if it turns out that it is negligible, then a given offense will not constitute a tax offense.
However, the act does not specify what is meant by the negligible social harmfulness of the act. However, when determining the degree of social harmfulness of a prohibited act, the following should be taken into account:
the type and nature of the threatened or infringed goods,
the importance of the breached financial obligation,
the amount of depleted or subject to depletion of public law receivables,
manner and circumstances of the committed act.
Bearing in mind the above criteria, it can be concluded that the notorious late submission of declarations and failure to pay tax liabilities will have high social harmfulness, while a delay of several days in submitting the declaration will have low social harm.
However, it is advisable to submit an application to the tax authority with a request for a justification in which it will assess the degree of harmfulness of a given act.
Therefore, if the entrepreneur violates the obligations imposed by the tax laws, for which the Fiscal Penal Code provides for sanctions, he does not commit a fiscal offense if the violation is of low social harm or was committed unintentionally.
Tax mandate and unintentional misdemeanor
Failure to commit a prohibited act is stated by reference to the perpetrator's knowledge and not his intentions, however, under the criminal fiscal law, inadvertence refers to the ambiguity of tax regulations. Therefore, if the interpretations issued by the tax authorities are not clear, the entrepreneur may refer to the ambiguity of the regulations.
An error that results from the ambiguity of tax regulations or their interpretation does not constitute grounds for penalizing the entrepreneur with a tax mandate.
However, it should be borne in mind that if an entrepreneur refuses to accept a fiscal mandate, referring to the ambiguity of tax regulations, he will probably have to prove in court that the offense was committed unintentionally.
What are the consequences of refusing to accept a tax ticket?
Prior to the imposition of a tax mandate, a tax authority representative must specify the offense charged to the taxpayer and inform him about the possibility of refusing to accept the mandate, as well as about the consequences of not accepting the mandate. If the taxpayer refuses to accept a tax ticket, his case will be brought to court and an investigation will be initiated against him. In addition, an indictment will be filed with the court, usually accompanied by a request to punish the taxpayer who has not accepted the fine.
If the entrepreneur does not agree to accept the tax ticket, he must bear in mind that his case will be settled by a court.
An entrepreneur who refuses to accept a fiscal mandate should make sure that he has sufficient evidence confirming the negligible social harmfulness of a given act or inadvertent committing an offense. If the court case is decided against the taxpayer, he will have to pay the costs of the court proceedings.
When is it advisable to accept a tax ticket?
A taxpayer who decides to accept a fiscal mandate, within 7 days from the date of its acceptance, may submit an application to the court for the immediate revocation of the tax mandate. If the court decides that the act is negligible or that the act has been committed unintentionally, it will revoke the mandate. This is confirmed by the following provision of the Fiscal Penal Code:
Art.140 § 2 The right to revoke a legally valid criminal mandate is the court competent to hear the case in the area of which the fine has been imposed. The court rules on the revocation of the criminal mandate at the session. The meeting may be attended by the punished body, the body which or whose officer imposed a fine by way of a criminal mandate, or a representative of this body and the disclosed intervener. Before issuing a decision, the court may order appropriate steps to verify the grounds for revoking the penalty notice.
Moreover, in such a case, the taxpayer will not incur the costs related to the court proceedings and will not be obliged to pay the penalty.
Voluntary submission to a penalty after refusing to accept a tax mandate
It may happen that the entrepreneur refuses to accept the fiscal mandate, but after analyzing his arguments, he will find that he does not have sufficient evidence to support his arguments.
In such a situation, until the tax authority brings an indictment against the entrepreneur, he may apply for a permit to voluntarily submit to liability.
This procedure takes place in two stages. First, the taxpayer submits an application to the court, via the financial authority, for a permit to submit voluntarily to liability, and then, if the relevant conditions are met, the court issues a permit to voluntarily submit to the penalty.
The conditions that must be met are set out in Art. 17 § 1 of the Fiscal Penal Code:
Article 17 § 1 The court may authorize voluntary submission to liability if the guilt of the perpetrator and the circumstances of the fiscal offense or fiscal offense do not raise any doubts, and at the same time:
1) the entire amount due under public law has been paid, if in connection with a fiscal offense or a fiscal offense there has been a reduction of this claim;