General Rules for Combating Criminal Tax Evasion in Poland

Dmitry Artemenko

, Edvardas Juchnevicius

and Tetiana Iefymenko

Southern Federal University, Rostov-on-Don, Russia

Gdansk University, Gdansk, Poland

Academician of the National Academy of Sciences of Ukraine, Kiev, Ukraine

Keywords: Criminal law, tax crimes, abuse of law, tax evasion, tax law.

Abstract: The question of the place of tax crimes in the criminal legislation is currently debatable. The article examines

the experience of Poland in the field of legal regulation of liability in the field of tax crimes, and also suggests

ways to solve current problems. The authors analyze the Polish legislation and come to the conclusion that it

is necessary to improve the current legislation. Especially acute at the moment is the question of taxpayers

from the regulatory authorities in case of suspicion of the implementation of a tax crime. It is proposed to

modernize the legislation in such a way that it would provide adequate protection for the taxpayer. The

purpose of this article is to analyze the features of the application General Anti-Avoidance Rules. The

conducted research can be used in the practical activities of services that provide counteraction to tax crime.

1 INTRODUCTION

From 2008 we see the growing interest of all states in

the fight against the phenomenon of tax crime

establishing various regulations aimed at a possible

fight against this phenomenon. These provisions take

the form of both general anti-tax crime clauses, which

are general provisions, and the form of specific

provisions by establishing anti-abusive clauses under

provisions relating to individual taxes.

The aim of this article will be to present the

history of the development of the general anti-tax

avoidance clause under the Polish legal system and to

try to answer the question whether such regulations

adequately guaranteed protection of the taxpayer's

rights against abuse by tax authorities of such clauses.

It should be pointed out that in the case of tax

avoidance, the fiscal interests of the state and the

economic interests of the taxpayers themselves clash.

The tax avoidance clause should aim to reconcile

the interests of both taxpayers and the State Treasury.

This state of affairs is possible only if the tax authority

is entitled to prevent the taxpayer from gaining the tax

benefit resulting from the abuse of law by the

taxpayer. On the other hand, the taxpayer should have

legal instruments to protect it against arbitrary and

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unjustified application of the anti-tax avoidance

clause (tax crime). The aim of this article is to attempt

to present the history of the development of the

general tax evasion clause in the Polish legal system

and to find an answer to the question of the

sufficiency of guarantees of such provisions to protect

the rights of taxpayers from abuse by the tax

authorities.

2 MATERIALS AND METHODS

The study was conducted using the following general

scientific epistemological methods, in particular,

logical, system-functional, situational, comparison,

grouping, and monographic survey. The analysis of

the Polish and Russian legislative bases regulating the

issues of taxation, tax control and control over

attempts to evade tax obligations is carried out, and

all the changes made to the legislative and

subordinate acts of both countries are evaluated on

the basis of the method of retrospective analysis.

The materials for the study were the fundamental

provisions, concepts and applied developments

contained in the publications of leading scientists in

Artemenko, D., Juchnevicius, E. and Iefymenko, T.

General Rules for Combating Criminal Tax Evasion in Poland.

DOI: 10.5220/0010634900003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

253-261

ISBN: 978-989-758-532-6; ISSN: 2184-9854

253

the field of tax evasion and the prevention of tax

crimes, data from the Internet.

3 RESULTS AND DISCUSSION

As a result of the study, the authors concluded that the

current version of the provisions on countering tax

crimes sufficiently protects the rights of taxpayers,

despite the presence of some inaccuracies in the

interpretation of the content of the article itself.

Within the scope of this article, the taxpayer has the

right to obtain an opinion on security that performs a

guarantee and protective function.

3.1 The History of the Regulations on

Counteracting Tax Avoidance in

Polish Law

Initially, the provisions of the Tax Ordinance Act (so

called Polish Tax Code) did not contain any

regulations that would constitute a form of an anti-tax

avoidance clause. The tax authorities referred to the

provisions of the Civil Code Act in order to determine

the possible invalidity of given legal acts undertaken

by taxpayers in order to obtain a tax advantage.

Pursuant to Art. 58 § 1 of the Civil Code, an

activity aimed at circumventing the act is invalid. In

this provision, the legislator provided for the absolute

invalidity of a legal act aimed at circumventing the

act. This means that an act aimed at circumventing the

act is invalid by virtue of the law itself and from the

moment it was performed.

Problematic in interpreting art. 58 § 1 of the Civil

Code it seems, first of all, to determine what is an

activity aimed at circumventing a statute and how to

understand the very concept of an act in this

provision. The mere act of circumventing the Act is

understood as such behavior of the parties to the legal

transaction, which was aimed at violating statutory

orders or prohibitions (Swierczynski, Zalucki, 2019).

Such breach, however, is not committed through

unlawful contractual provisions, but only by seeking

the final result of the contract as contrary to statutory

orders or prohibitions (Safjan, Pietrzykowski, 2020).

The dominant view in the doctrine of civil law is

that an act should be understood as a catalog of

written sources of law occurring in the Polish legal

system, contained in Art. 87 sec. 1 and sec. 2 of the

Polish Constitution (Trzaskowski, 2018). While such

a view does not raise doubts at the level of civil law,

it would contradict the principle of exclusivity of the

act in establishing structural elements of taxes,

contained in Art. 217 of the Polish Constitution. First

of all, it should be pointed out here that it would be

possible to declare the invalidity of an act that violates

only an act of local law or a regulation, which would

conflict with the impossibility of influencing the

taxpayer's legal and tax situation with normative acts

below the statutory rank. This means that under the

tax law, a statute within the meaning of Art. 58 § 1 of

the Civil Code one should understand normative acts

of a rank no lower than the statutory one.

It follows from the above that the tax authorities

relied on this provision to declare the absolute

invalidity of a given act undertaken by the taxpayer

in order to reduce the amount of the tax liability. The

justification for such actions by tax authorities was to

be the principle of the autonomy of tax law, which

would make it possible to determine the

ineffectiveness of civil law actions in tax law on the

basis of whether they do not constitute activities

aimed at tax evasion.

Nevertheless, the real economic goal was the limit

when examining the possibility of circumventing the

tax act by a given legal act. The real economic goal

should be considered the striving of the parties to the

contract to shape it in a typical manner, primarily

within the realities of economic trading. If the

contract did not lead to any uneconomic behavior by

one of the parties, although its conclusion reduced the

amount of the tax liability, such a contract could not

be considered to evade tax law. A similar view was

shared by the judgments of the time, because if the

main purpose of the agreement was to obtain a tax

advantage, then such an agreement is invalid as it is

aimed at evading tax law.

This view was also endorsed by the doctrine of

financial law, because, according to Krzysztof

Radzikowski, a taxpayer is not obliged to choose such

a solution in trade that would lead to the highest

possible tax liability (Radzikowski, 2007). This view

should be approved of, because the need for the

taxpayer to choose such a legal act as it would lead to

the maximization of the tax burden would be contrary

to Art. 21 of the Polish Constitution which guarantees

the protection of property rights and Art. 22 of the

Polish Constitution, which provides for the restriction

of the freedom of economic activity only due to

important public interest. An indispensable element

of economic activity, emphasized in its definition, is

its profitability. This means that adopting the view

that the taxpayer must choose such solutions that lead

to the maximization of the tax burden would violate

the essence of economic activity, which would

constitute an unlawful violation of the constitutional

freedom of economic activity.

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Such reasoning of the tax authorities was

supported by administrative courts, which, in their

opinion, using the provisions of civil law or

interpreting provisions from the point of view of civil

law cannot lead to obtaining tax benefits for

taxpayers. Nevertheless, the sanction of performing a

legal act in order to obtain a tax advantage by the

taxpayer was not the absolute invalidity of the legal

act, but only the possibility of non-compliance by the

tax authorities with the provisions of legal acts aimed

at circumventing fiscal regulations.

The Polish legislator decided to amend the Tax

Ordinance Act by adding Art. 24a and art. 24b, which

regulated the tax consequences of concluding an

apparent legal transaction and the tax consequences

of a legal transaction concluded to circumvent tax

law. As regards those provisions, P. Karwat rightly

argued that those provisions could only apply in cases

where the taxpayer deliberately intended to achieve,

through the contract in question, primarily tax

advantages and not economic objectives (Karwat,

2003). It is not always dependent on the will of the

taxpayer to achieve a given goal contained in the

contract, which justified the impossibility of

penalizing the taxpayer to some extent under the tax

law for achieving a different economic effect of the

concluded contract, which was not influenced by this

effect.

Art. 24a of the Tax Ordinance Act was to

constitute the rules of conduct for tax authorities in a

situation where the parties to the contract committed

a hidden legal transaction that would lead to a tax

advantage. In such a case, the tax authorities could

derive the tax consequences from a hidden legal

transaction, instead of from the legal transaction

performed.

Art. 24b of the Tax Ordinance Act regulated the

conduct of tax authorities in a situation where the

parties concluded an agreement whose purpose would

be mainly to reduce the amount of the tax liability,

increase the loss, increase the overpayment or tax

refund. In such a situation, if the parties have

achieved the intended economic result for which

another legal act is appropriate, the tax consequences

arise from that other legal act.

However, such a solution did not gain the

approval of the Constitutional Tribunal, which ruled

on 11 May 2004 that Art. 24b § 1 of the Tax

Ordinance Act is inconsistent with Art. 2 and art. 217

of the Polish Constitution. In the opinion of the

Constitutional Tribunal, the provision of Art. 24b § 1

of the Tax Ordinance Act was inconsistent with the

Constitution of the Republic of Poland in the scope

enabling the tax authorities to determine the content

of vague terms used in this editorial unit and to what

the wording of Art. 24b § 1 of the Tax Ordinance Act

does not impose on the tax authorities the need to

consider blurred terms in a manner that ensures a

stable line of jurisprudence. Moreover, the provision

of Art. 24b § 1 of the Tax Ordinance Act did not

regulate the type of settlement issued in the event of

concluding a contract to circumvent tax law.

Nevertheless, the judgment of the Constitutional

Tribunal did not determine that any anti-tax

avoidance clause would be inconsistent with the

Polish Constitution. This means that the legislator

was still empowered to introduce a clause preventing

the simulation of legal acts that affect the possible

occurrence of the tax obligation and the amount of the

tax liability, as well as obtaining tax returns and

reductions by means of legal actions undertaken only

for this purpose (Olesiak, Pajor, 2020).

Another solution provided for by the legislator,

which was to replace the existing Art. 24a and art. 24b

of the Tax Ordinance Act is the introduction from 1

September 2005 of Art. 199a of the Tax Ordinance

Act, which regulates the interpretation of declarations

of will in tax proceedings and the tax consequences

of concluding a hidden legal transaction. The wording

of Art. 199a of the Tax Ordinance Act obtained the

approval of the Constitutional Tribunal in the scope

of § 3, which ordered the tax authorities to apply for

establishing the existence or non-existence of this

legal relationship or right, when, on the basis of

evidence collected in the course of the proceedings,

doubts arose as to the existence or non-existence of a

legal relationship or the right to which they are related

tax consequences. Moreover, the Constitutional

Tribunal rightly pointed out that Art. 199a of the Tax

Ordinance Act it does not prejudge any material and

legal consequences of taxpayers' actions, and

therefore does not constitute a tax evasion clause.

Moreover, Art. 199a of the Tax Ordinance Act it

cannot constitute an independent legal basis for

recognizing a given legal transaction as

circumventing tax law and the possibility of

disregarding these tax consequences by tax

authorities.

Art. 199a of the Tax Ordinance Act it may be used

only in the course of pending tax proceedings and for

its use. This means that it is not possible to adjudicate

pursuant to Art. 199a Tax Ordinance Act on the

general invalidity of a given legal transaction in terms

of the legal and tax situation of the taxpayer. Rightly

about Art. 199a Tax Ordinance Act the Provincial

Administrative Court in Wrocław said that this article

is of a guarantee nature, as it protects taxpayers

against self-recognition by the tax authorities that a

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given legal act was performed in order to avoid

taxation.

3.2 Art. 6 of the ATAD Directive and

Polish Regulations on

Counteracting Tax Avoidance

The introduction of anti-tax avoidance regulations to

the Polish order, including the introduction of a

general anti-tax avoidance clause, coincided with the

entry into force of the provisions of Directive

2016/1164 of the European Union Council of July 12,

2016 laying down provisions aimed at counteracting

tax avoidance practices, which have a direct impact

on the functioning of the internal market (ATAD

directive). Pursuant to Art. 6 of the ATAD Directive,

the Member States of the European Union had to

implement an anti-avoidance clause in their laws on

corporate income tax.

According to the EU legislator, expressed in

Recital 11 of the ATAD Directive, general anti-tax

avoidance provisions should apply to arrangements

that are not genuine. This means that the anti-tax

avoidance clause should only refer to such legal

transactions that are aimed solely at tax avoidance. If

a legal act is performed for any economically justified

purpose, the EU legislator orders to refrain from

applying the anti-tax avoidance clause.

Moreover, the EU legislator emphasized in the

content of recital 11 of the ATAD Directive that the

taxpayer is not obliged to choose such a form of legal

transaction that would lead to the maximization of the

tax burden. The taxpayer should be free to design the

legal transaction that would be most effective in his

business. The only condition is only the performance

of a legal transaction justified by the achievement of

an economic objective, and not only a tax advantage.

For if the activity is real, then in such a situation the

taxpayer may rightly receive a tax advantage

(Jankowski, 2020). Błażej Kuźniacki spoke rightly

regarding the content of recital 11 of the ATAD

directive, who believes that the recital of the

directive, as an element created in the course of

legislative work on the directive, should be taken into

account, as this is the Vienna Convention on the Law

of Treaties (Kuźniacki, 2020).

The content of the GAAR clause itself is governed

by Art. 6 sec. 1 of the ATAD Directive, which allows

the tax authorities of Member States to disregard such

agreements whose main purpose or one of the main

purposes is to obtain a tax advantage that is contrary

to the object or purpose of the applicable tax law. The

Polish legislator chose the wording almost identically

in Art. 119a § 1 of the Tax Ordinance Act, which

prevents a taxpayer from obtaining a tax advantage,

if the achievement of this benefit, contrary in the

given circumstances to the object or purpose of the

tax act or its provision, was the main or one of the

main purposes of its implementation, and the method

of operation was artificial.

However, the lack of identity between these

definitions is indicated by Błażej Kuźniacki, who

believes that the content of the Polish definition

distorts the meaning of the definition from the ATAD

directive, since the wording of 119a § 1 of the Tax

Ordinance Act shows that any attempt to minimize

the tax burden by the taxpayer is irrational

(Kuźniacki, 2020). While it is impossible to disagree

with the view of Błażej Kuźniacki that every taxpayer

plans to undertake activities in a manner leading to

maximization of profit, it should be noted that the

purpose of the anti-tax avoidance clause is to

counteract such activities that are mainly undertaken

with the minimization of tax burdens. and not with the

achievement of any equivalent performance being the

subject of a given activity. The clause in Art. 119a §

1 of the Tax Ordinance Act applies to such activities,

where the desire to avoid tax prevails over the aspects

that are the subject of a given contract.

A similar view on the Belgian implementation of

the ATAD directive is put forward by Philippe

Malherbe, who believes that every entrepreneur will

try to avoid taxation because it is in his economic

interest (Malherbe, 2019). However, such a view is

too far-reaching, as it would lead to the possibility of

considering a given activity as an attempt to avoid

taxation only because the activity is performed in the

course of trade. Such an understanding of Art. 6 of the

ATAD Directive would not be acceptable from the

point of view of the principle of trust (one of the

principle of tax proceeding) referred to in Art. 121 §

1 of the Tax Ordinance Act.

3.3 Guarantees to Protect the

Taxpayer’s Rights When Applying

the Anti-tax Avoidance Clause

The provisions on counteracting tax avoidance for the

first time introduced by the Act of 13 May 2016

amending the Tax Ordinance Act and certain other

acts, in addition to the general anti-avoidance clause

itself, also contained provisions defining the

understanding of individual elements of this clause,

and also contained guarantees to protect the

taxpayer's rights against the unjustified use of the

anti-avoidance clause by tax authorities. In the period

between the loss of binding force of Art. 24b of the

Tax Ordinance Act pursuant to the judgment of the

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Constitutional Tribunal, and the introduction of the

anti-tax avoidance clause pursuant to the Act of 13

May 2016, tax authorities were unable to apply any

anti-avoidance clause. The limit of tax optimization

was only for the parties to the contract to make the

concluded contract effective in the light of the

provisions of the Civic Code, but only within the

limits of art. 199a of the Tax Ordinance Act in

connection with Art. 83 of the Civil Code. The

provisions of the Act - Tax Ordinance did not contain

any reference to the possibility for tax authorities to

recognize a legal transaction as absolutely invalid

under Art. 83 of the Civil Code.

Based on Article. 119a § 1 of the Tax Ordinance

Act, the activity does not result in the achievement of

a tax advantage, if the achievement of this benefit,

contrary in the given circumstances to the object or

purpose of the tax act or its provision, was the main

or one of the main purposes of its performance, and

the method of operation was artificial. The Polish

legislator decided to define all elements of this

definition for the first time in order to ensure the

potential uniformity of jurisprudence required by the

Constitutional Tribunal.

Art. 119a § 3 of the Tax Ordinance Act constitutes

a model of an appropriate activity as such, in which

an entity could, in the given circumstances, perform

if it acted reasonably and was guided by lawful

purposes other than achieving a tax advantage

contrary to the object or purpose of the tax act or its

provision, and the manner of operation would not be

artificial. Appropriate action may also consist in

failure to act.

In art. 119c the Tax Ordinance Act the legislator

defined the concept of an artificial activity, and also

indicated examples of activities that could be

considered artificial. The indication of examples of

activities corresponds to the principle of providing

taxpayers with the possibility of predicting the tax

consequences of their actions, which was expressed

by the Constitutional Tribunal. Pursuant to Art. 119c

§ 1 of the Tax Ordinance Act, the method of operation

is not artificial if, on the basis of the existing

circumstances, it should be assumed that an entity

acting reasonably and guided by lawful goals would

use this method of operation predominantly for

justified economic reasons.

In the justification to the draft act, the legislator

indicated that its aim was to counteract both the

artificiality of activities in legal and economic terms.

In legal terms, artificiality consists in its excessive

complexity. In economic terms, an artificial

transaction is considered to be a transaction in which

there is no economic substance. It seems that only the

fulfillment of both the legal and economic approach

to artificiality determines its artificiality within the

meaning of Art. 119c the Tax Ordinance an artificial

activity is an activity in which the legal institutions

applied lead to a distortion of the economic

justification of such an activity. This means that

activities are not undertaken in order to conclude a

given contract and obtain equivalent benefits by its

parties, but only to obtain a tax benefit.

Moreover, under the Italian legal order, it is

artificial (in the case of Italian law there is the term

"non-economic") "inconsistency between individual

transactions and the ratio legis of the transaction as a

whole or the use of legal instruments that contradict

the logic that would normally apply under market"

(Cannas, 2020). This approach of the Italian legislator

should be appreciated, because the tax authority

should only examine the legal aspects of a given

activity. The sole determination of the economic

sense of a given activity should be left to the will of

the taxpayers as parties to the activity. The parties to

the transaction know best what forms of activity are

most economically beneficial for them, and the tax

authority should only be authorized to investigate

whether such a form leads to the abuse of tax law in

order to significantly improve or even ensure the

economic efficiency of a given activity only by using

the abuse of tax law leading to avoidance of taxation.

Nevertheless, doubts may be raised by art. 119a §

1 of the Tax Ordinance Act reference to a tax

advantage "which is, in the circumstances, contrary to

the object or purpose of a tax law or a provision

thereof". According to Hanna Filipczyk, the point

here is that the parties to a given legal transaction do

not lead to the fact that what the legislator intended to

tax would not be taxed (Filipczyk, 2020). This seems

to be the correct view, since the parties to a given

legal transaction should not be empowered to regulate

their legal relationship in such a way that would lead

to a tax advantage. The economic justification for

performing a legal transaction in a given way should

not be solely the achievement of a tax advantage. This

view justifies the introduction of a general anti-tax

avoidance clause. This is without prejudice to the

right of the parties to a legal transaction to shape it in

the most effective manner for both parties. However,

the achievement of a tax advantage cannot be the only

or definitely a significant element of the effectiveness

of a given legal transaction for both parties. When

determining whether the achievement of a tax benefit

would definitely be a significant element of the

effectiveness of a given activity, it should be decided

whether without this benefit the parties would have

performed this activity. If not, such an activity

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undoubtedly constitutes tax avoidance. Similarly,

Mariusz Stefaniak believes that an activity that is

contrary to the object or purpose of the tax act or its

provision will not take place when "the achievement

of the tax benefit was not important for the taxpayer

or the significance of the achievement of such an

advantage was less than the importance of other

determinants of the activity" (Filipczyk, 2020).

While the very understanding of both the tax

advantage and the artificial method of operation has

been defined by the legislator, the legislator has not

regulated what to understand as the object or purpose

of the tax act or its provision. According to Andrzej

Gomułowicz, this way of drafting both Art. 119a and

art. 119c of the Tax Ordinance Act violates the

constitutional principle of loyalty, i.e. the principle of

the taxpayer's trust in the state and the law it enacts

by using too frequent imprecise evaluation phrases

(Gomułowicz, 2019). This view is not entirely

accurate. While unquestionable tax law requires

compliance with the principle of specificity of law

and proper legislation, it is impossible to ensure the

wording of the general clause that would allow its

application in specific cases without interpreting it in

the individual case of a given taxpayer. In the

doctrine, Jakub Jankowski believes similarly, in his

opinion, unclear evaluation phrases will enable tax

authorities to take action in the event of a new,

unknown form of tax avoidance (Jankowski, 2020).

The legislator in Art. 119c § 2 of the Tax Ordinance

Act formulated a catalog of examples of activities that

may be considered artificial and, consequently, lead

to the application of the anti-tax avoidance clause.

In the context of Dutch legislation, an important

problem was pointed out by Federica Casano, who, in

her opinion, the Dutch anti-avoidance clause refers

only to the violation of the purpose or object of the

tax act constituting an element of the Dutch legal

order, unless a given activity violates the Dutch tax

regulations as well (Casano, 2019). A similar view

should also be made under the Polish Act - Tax

Ordinance Act, which gives a different meaning to the

concepts of the tax act and the provisions of tax law.

Agreements on the avoidance of double taxation or

other international agreements ratified by Poland do

not fall within the scope of the tax act, but only the

provisions of tax law. This means that the mere

breach of a ratified international agreement does not

entitle to the application of the tax avoidance clause,

unless a provision of the Polish Tax Act is breached.

The fact that the international agreements ratified by

Poland are higher than the statutes in the hierarchy of

sources of law does not mean that a breach of only a

ratified international agreement could be the basis for

the application of the tax avoidance clause. This is

indicated by Art. 84 and art. 217 of the Constitution

of the Republic of Poland, which provide that the

imposition of taxes and the determination of their

structural elements may only take place by statute.

In the event that in a given tax case it was possible

to issue an administrative decision in which Art. 119a

of the Tax Ordinance Act, then in such a case tax

proceedings, tax control or customs and fiscal control

may be taken over or initiated by the Head of the

National Revenue Administration (KAS). Such a

solution should be assessed positively from the point

of view of the current Polish jurisprudence regarding

the anti-avoidance clause, because then the taxpayer

is aware that it is possible to apply tax sanctions

referred to in art. 119a the Tax Ordinance Act.

The most important guarantee of protection of the

taxpayer's rights in the proceedings taken over by the

Head of KAS is the possibility for him to refer to the

Council for Counteracting Tax Avoidance.

Moreover, pursuant to Art. 119h § 2 of the Tax

Ordinance Act, the taxpayer, in an appeal against a

decision to which the anti-avoidance clause has been

applied, may request the Head of KAS to apply to the

Council for an opinion on a given case. Moreover, in

the course of examining a given matter by the

Council, both the Head of KAS and the taxpayer are

entitled to provide explanations and information

regarding this matter.

Moreover, pursuant to Art. 119j the Tax

Ordinance Act a taxpayer other than a taxpayer

against whom a decision was issued using the anti-

avoidance clause is entitled to correct the declaration

for the tax consequences of the decision and may

apply for overpayment or tax refund.

Another guarantee for the protection of the

taxpayer's rights is the possibility for the taxpayer,

against whom a decision was issued using the anti-tax

avoidance clause, to issue a decision specifying the

conditions for withdrawing the effects of tax

avoidance. The purpose of this legal institution is to

provide the taxpayer with the possibility of

withdrawing from the effects of tax avoidance in the

event that no tax proceedings are pending that would

enable the taxpayer to correct the tax return.

The decision in this matter is issued by the Head

of KAS, who in the content of the decision specifies

the conditions that must be met by the taxpayer in

order for the decision to be withdrawn against him.

Moreover, the Head of KAS may ask the interested

party to clarify his position, doubts as to the data

contained in the application, or the Head of KAS may

organize a consultation meeting on this matter.

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The last guarantee of protection of the taxpayer's

rights, provided for by the legislator in the provisions

on the anti-tax avoidance clause, is the possibility for

the taxpayer concerned to apply to the Head of KAS

for a protective opinion. If the taxpayer receives a

security opinion, which shows that the activity

planned by him does not constitute tax avoidance,

then compliance with the protective opinion may not

hurt the taxpayer before changing it. This means that

if the taxpayer performs an activity marked in the

protective opinion, the Head of KAS may not apply

the anti-tax avoidance clause to this activity. This is

also confirmed by Art. 119b § 1 point 2 of the Tax

Ordinance Act.

Moreover, Maciej Ślifirczyk rightly spoke about

the ratio legis, in his opinion the introduction of the

protective opinion was aimed at preventing the use of

individual interpretations to confirm that the facts that

were used for tax avoidance were lawful (Ślifirczyk,

2018). In his opinion, taxpayers could obtain

interpretations confirming the lawfulness of the

planned activities by applying for individual

interpretations to specific facts. However, the facts

covered by the requests for individual interpretation

were recognized by the Director of the National Tax

Information separately from each other. Currently,

such a solution is impossible. This is mainly due to

Art. 119f § 1 of the Tax Ordinance Act, which allows

for the recognition of tax avoidance of a set of related

activities performed by both the same and different

entities.

However, the legislator did not regulate what

should be understood as "related activities." Most

likely, it is about such grouping of activities, the

performance of which, according to the intentions of

taxpayers, will lead them to obtain a tax benefit. in

themselves, they do not constitute a form of seeking

to avoid taxation, but would serve to enable an

activity constituting a form of tax avoidance - such

activities would be ancillary to activities directly

constituting tax avoidance. The same solution to art.

119f § 1 of the Act is found in Dutch law, which also

makes it possible to consider a set of related activities

as tax avoidance. Regarding the possibility of

considering a set of related activities as a form of tax

avoidance, the Dutch doctrine expresses the view that

they constitute tax avoidance when the desire to avoid

tax avoidance. taxation would be the main element

determining the choice of such a method of

conducting the transaction (Hemels, 2016).

In the opinion of the Supreme Administrative

Court, the essence of the protective opinion is not to

assess the position of the applicant whether the action

taken by him constitutes tax avoidance, because it is

the Head of KAS who must assess the potential

admissibility of applying the anti-tax avoidance

clause in a given factual state. When assessing a given

activity, the Head of KAS should consider the

circumstances of this activity in terms of its economic

justification and the expected economic and tax

benefits resulting from its performance.

It can be stated that a significant modern trend in

the activities of tax administrations is the policy of

ensuring the interests of the budget while respecting

the economic interests of bona fide taxpayers. So, in

Russian practice in 2017, Article 54.1 of the Tax

Code enshrines the concept of an unjustified tax

benefit, which is designed to counteract the reduction

of tax liabilities by distorting economic facts and

circumstances of real activity.

It should be noted that in Russia, the principle of

the presumption of good faith of taxpayers operates

as a fundamental principle of legislation on taxes and

fees, which requires the tax authorities to substantiate

the facts of violation of the law and provide

appropriate evidence. Since the concept of an

unjustified tax benefit is based on proof of the fact of

deliberate actions of the taxpayer, technical errors in

calculating tax liabilities do not entail the application

of Article 54.1. At the same time, as a result of the

amendments made to the tax legislation, the existing

approaches to tax audits were subjected to conceptual

revision by strengthening the analytical component in

choosing the object of control, actively introducing

digital technologies into the methodological toolkit

for identifying possible evasion, and substantiating

new principles for collecting evidence of aggressive

tax optimization.

At the same time, the changes in the law did not

formally lead to the expansion of the powers of the

tax authorities, and the effectiveness of tax audits is

ensured by special methods of identifying violations

committed by the taxpayer. First of all, tax control is

focused on identifying signs of a deliberate reduction

by the taxpayer of the tax base and (or) the amount of

tax payable as a result of distortion of information

about the facts of economic life or objects of taxation

reflected in accounting and tax reporting. Typical

signs of such actions are the creation of various

schemes aimed at the unjustified application of

reduced tax rates, preferential taxation regimes, the

terms of international treaties, and the execution of

imaginary or sham transactions. Methods for

distorting tax accounting data are reduced to

understating revenue, reflecting deliberately

inaccurate information about taxable items in tax

calculations, including supposedly performed

transactions (unrealistic transactions).

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Russian tax legislation postulates the rule that the

facts of violation of tax legislation by counterparties,

doubts about the reliability of primary documents if

they are signed by unidentified persons, as well as the

possibility of other legal registration of transactions

cannot be considered as confirmation of an

unjustified tax benefit. In this regard, the tax

authorities are obliged to reliably establish a

sufficient amount of evidence that, in aggregate,

testified to the intentionality of the taxpayer's actions.

As such evidence, confirmation of such facts is used

as:

 lack of economic opportunity for the

disputable counterparty to fulfill its obligations;

 the absence of expenses necessary for the

fulfillment of the assumed obligations under the

disputable transactions;

 registration of a disputed counterparty after

the conclusion of an agreement with a taxpayer;

 absence of controversial counterparties at the

place of state registration and addresses declared in

primary documents;

 tax returns of disputed counterparties are

submitted with minimum tax amounts;

 the officials of the disputed counterparties do

not appear in the tax authorities on a summons for

interrogation;

 disputable counterparties use a closed

settlement cycle, transferring funds to the same

persons, mainly in the form of borrowed funds,

which, as a rule, are returned to the beneficiaries of

the applied scheme.

In this regard, tax administration in Russia is

focused on concretizing in the materials of tax audits

the actual actions of the taxpayer, his officials and

affiliates, proving intentions to cause damage to the

budget system. To this end, the tax authorities, within

the framework of tax control measures, are guided by

the identification of circumstances indicating the

awareness of the illegal nature of the actions of

specific persons, for which they are subject to

research such issues as: determining the essence of

the admitted distortions in the calculation of taxable

indicators (tax amount), identifying causal links

between the misstatements and specific actions of the

taxpayer, the presence of intent to benefit from the

reduction of tax liabilities, real harm to the budget

system.

Collecting information to establish the above facts

requires the use of a wide range of diverse

information, which is ensured by the integration of

modern information technologies into all business

processes of tax administration. To this end, since

2012, within the framework of the large-scale state

program "Public Finance Management and

Regulation of Financial Markets" being implemented

in Russia, tax administration procedures have been

actively improved through the introduction of

automated control systems and counteraction to tax

evasion. The plans of the tax authorities of Russia for

2021-2023 announced testing of modern analytical

tools to ensure the identification of the hidden tax

base and the observance of the legal rights and

interests of taxpayers, remote automated control,

analysis and generalization by specialized

information systems of information about the

taxpayer's transactions in order to independently

calculate tax liabilities small businesses. The

effectiveness of automated control is illustrated by the

work of an automated complex for verifying the

reliability of value-added tax (VAT) calculations

based on a comparison of taxpayers' information on

completed transactions and issued invoices. If the

mirror principle of VAT “accrual-deduction” does

not coincide, tax authorities promptly identify both

technical errors and potential tax frauds. Thus, the use

of digital technologies increases the transparency of

tax processes, ensures the rationality of planning

control efforts and focus on those areas of activity

where the risk of tax violations is increased.

Information systems of the Federal Tax Service of

Russia use large-scale volumes of information,

including data streams accumulated by various

authorities and administrations, law enforcement,

customs and other fiscal authorities. At the same time,

a unified technological base, in addition to facilitating

control procedures in order to increase the volume of

tax revenues and ensure the prevention of violations

of tax legislation, provides a reduction in transaction

costs for taxpayers.

4 CONCLUSIONS

The wording of the anti-tax avoidance clause in the

Polish legal order has gone a long way - from

applying only the provisions of the Act - Civil Code

to creating a separate chapter of the Act – in the Tax

Ordinance Act, which regulates this matter in detail.

The change in the wording of the regulations was also

accompanied by the development of guarantees to

protect the taxpayer's rights in the event of abuse by

the tax authorities of the anti-avoidance clause.

Initially, the tax authorities applied the provisions of

the Act - Civil Code without any reference in the

provisions of the tax law to this act. Moreover, the tax

authorities arbitrarily ruled on absolute invalidity of

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ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

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the transaction, although they were not entitled to do

so.

The state of affairs was improved by the judgment

of the Constitutional Tribunal, which significantly

improved the legal standards accompanying the

general clause on counteracting tax avoidance. The

Constitutional Tribunal did not rule on the prohibition

of regulating such an institution in the Polish legal

order, but the taxpayer should be protected against its

arbitrary application and should be able to use any

legal means of protection against abuses of tax

authorities.

It seems that the current wording of the provisions

on counteracting tax crimes by taxpayers sufficiently

protects the rights of taxpayers, despite some

inaccuracies in the interpretation of the content of the

clause itself. A taxpayer may obtain a security

opinion fulfilling a guarantee and protective function.

This will enable the taxpayer to obtain a guarantee

that the Head of KAS will not apply to him the effects

provided for in the event of tax avoidance by that

taxpayer.

One should also appreciate the possibility of

withdrawing the effects of the anti-tax avoidance

clause against the taxpayer if the conditions indicated

by the Head of KAS are met. As a result, a taxpayer

who, despite losing financial benefits, will have other,

non-tax benefits from such a transaction, will be able

to maintain the continued effectiveness of such

activities.

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