Who is Liable for Committing Tax Crimes?
At first glance, the answer to the question posed in the title of this article seems simple – the perpetrator is responsible for committing an offense under the Fiscal Penal Code. However, in reality, such an answer doesn’t explain much, as factual situations can be more complex, for example when multiple people collaborate, each performing different roles, or when some issue orders while others carry them out.
The Fiscal Penal Code provides for the possibility of complex personal and functional configurations when committing offenses and includes regulations that allow criminal fiscal liability to be assigned to various individuals involved in a criminal or fiscal offense.
Individual Perpetrator and Co-Perpetrator
When the perpetrator acts alone, the matter is straightforward. If the guilt is imputed to them at the time of the offense, they will be held criminally liable for fiscal offenses.
However, in cases where the perpetrator acts jointly and in agreement with another person, each of the individuals involved is held responsible for the offense. Each co-perpetrator who carries out the prohibited act is responsible within the limits of their intent or negligence, regardless of the responsibility of the other perpetrators. Personal circumstances that exclude, mitigate, or aggravate liability, which do not constitute an element of the prohibited act, are considered only with regard to the perpetrator to whom they apply.
The Directing or Instructing Perpetrator
Not all perpetrators of prohibited acts are at the same hierarchical level. In organized groups, there is a certain degree of subordination, and some perpetrators direct others in the commission of prohibited acts. The Fiscal Penal Code explicitly states that those who direct the commission of prohibited acts by another person are also liable for the offense. Therefore, an individual who “acts through someone else’s hands” to fulfill the elements of the prohibited act can be convicted of a fiscal or criminal offense.
Similarly, the person who exploits another person’s dependency on them and instructs them to commit a prohibited act is also liable for the offense.
Liability of Actual Perpetrators
The question arises of who bears criminal fiscal liability when an offense is committed by a collective entity, such as a company, for failing to pay tax on distributed dividends.
According to Article 9, Section 3 of the Fiscal Penal Code, for fiscal or tax offenses, criminal liability applies to those who, under a legal provision, a decision of the relevant authority, an agreement, or the actual conduct of economic, especially financial, matters, handle the economic matters of a natural person, legal entity, or unincorporated organization that does not have legal personality, as an accomplice.
For example, a person handling the economic affairs of a legal entity under a legal provision could be a member of the management board of a limited liability company. Based on the decision of the relevant authority, it may be a bankruptcy trustee.
It is also worth noting the concept of “handling economic matters, especially financial.” It means engaging in all kinds of activities of both a factual and legal nature related to the exchange of goods and services and the circulation of financial resources, including keeping financial records, tax advisory services, or settling tax liabilities.
To emphasize, under the discussed provision, a person handling, under the conditions specified in Article 9, Section 3 of the Fiscal Penal Code, the accounting for the taxpayer, including preparing declarations or statements subsequently submitted to the tax authority, may incur criminal liability as the perpetrator if, for example, they provide false information or conceal the truth in these documents, thus causing a loss of tax. Therefore, if an accountant contractually undertakes specific responsibilities concerning economic, especially financial, matters and a prohibited act occurs within the scope of the assigned competences, they may be held liable.
In Summary
As shown in the above article, a broader range of entities can be held criminally liable for fiscal offenses than the “direct” perpetrator or the entity that violates the addressed norm. Therefore, it is advisable to analyze one’s actions in light of the principles of qualification forms of perpetration described in this article.