The scope of exclusion of criminal liability for a fiscal crime in case of submitting a legally effective correction of the tax declaration – remarks in the context of the Supreme Court decision of 20th June 2012 (I KZP 3/12)

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 4
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 4

Szymon Tarapata - Ph.D., University of Wrocław, Chair of Criminal Law, Assistant Proffesor

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Keywords

tax declaration, legally effective correction of the tax declaration, fiscal criminal law, cumulative legal qualification

Summary

The article contains a number of critical remarks regarding the decision of the Supreme Court of 20th June 2012 (I KZP 3/12). The decision stated that if a given behavior is cumulatively qualified using a provision that does not include, as an element of a prohibited act, submission of a tax declaration, then even if a legally effective correction of such a declaration is made, it is not possible to apply the non-punishability clause covered under section 16a of the Polish Fiscal Criminal Code. Meanwhile, the analysis presented in the text irresistibly leads to the opposite conclusion. Submission of a legally effective correction of the tax declaration will always exclude liability for a fiscal crime which is characterized by a depletion or exposure to depletion of the tax due. This will happen even if the cumulative legal qualification of perpetrator’s act contains such provisions that do not have any element that relates to the depletion of the tax due or submission of the tax declaration.