Precedent-setting final judgment on the instrumentally initiated Fiscal Penal Code
Case study
Tax
The Tax-Litigation team at ALTO obtained for one of our Clients a precedent-setting and final judgment confirming that instrumental initiation of penal-fiscal proceedings cannot constitute a premise for effective suspension of the running of the limitation period.
In the case, the tax authority followed a common practice, i.e. in the course of tax proceedings, it initiated proceedings under the Fiscal Penal Code (a few weeks before the statute of limitations expired), after which it took virtually no action during the course of the Fiscal Penal Code case. Although such actions by the authorities have been widely criticized, administrative courts in the past have usually confirmed that they are allowed and effectively suspend the running of the statute of limitations.
However, in our case it was different. the Provincial Administrative Court in Warsaw, hearing a complaint against a tax decision, confirmed that the action of the authorities was incorrect and violated, among others, the principle of trust (III SA/Wa 3823/16). However, the authority appealed against this verdict to the Supreme Administrative Court claiming that it was incorrect and that the WSA had no grounds to assess the “reasons” for initiating the Fiscal Penal Code proceedings.
After we took further actions and submitted additional arguments, the tax authority finally agreed with the position of ALTO experts and withdrew the filed cassation appeal. By decision of 27 February 2020 the Supreme Administrative Court discontinued the proceedings, and therefore the favorable judgment of the Provincial Administrative Court became final and binding.
We are very proud of the outcome of his case, especially as it is one of the first judgments in which the Court – when assessing the effectiveness of the initiation of Fiscal Penal Code proceedings – went beyond the strictly literal wording of the provision and referred to its purpose / function. This favorable judgment of the Court was issued long before the Supreme Administrative Court adopted a resolution on the subject (I FPS 1/21).
The team representing the Client during the case consisted of: Paweł Fałkowski, Łukasz Kalisz and Dominik Niewadzi.
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Kamil Lewandowski
Chief Executive Officer
Kamil is a co-founder and CEO at ALTO. He is responsible for the development strategy of the ALTO group. Additionally, he oversees activities in the area of business development and marketing.
Paweł Fałkowski
Managing Partner, Accounting
Paweł is the firm’s co-founder and a Managing Partner at the accounting business line.
Sylwia Kulczycka
Managing Partner & Tax Advisor
Sylwia Kulczycka is a Managing Partner of the TAX business line at ALTO. She specializes in tax advisory services for the life sciences, IT and professional services industries.
Aleksandra Bońkowska
Partner & Tax Advisor
Aleksandra is a partner at ALTO. Before joining ALTO team, she worked in one of the big four companies. For many years, Ola has been advising clients in the financial industry, including in particular insurance companies, payment market institutions ...
Daniel Banach
Partner & Tax Advisor
Daniel is a partner at ALTO. He specializes in tax advisory for financial investors (mainly private equity funds) and for clients from the real estate industry.
