The crime of unreliable or defective tax record-keeping

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When running a business, in addition to issues of a business nature, one must also take care to meet obligations of a tax nature. After all, failure to comply with them, even unknowingly, can lead to consequences – even in the nature of criminal sanctions. An example of such behavior (or omission) may be the unreliable or defective maintenance of tax books, which is an act prohibited by the Fiscal Penal Code Act (hereinafter: Fiscal Penal Code).

Article 61 § 1 of the Fiscal Penal Code stipulates that whoever unreliably keeps books shall be punished by a fine of up to 240 daily rates. On the other hand, according to Article 61 § 2 of the Fiscal Penal Code, in a case of lesser gravity, the perpetrator of this act shall be subject to a fine for a fiscal offense (specified by amount).

What constitutes unreliable bookkeeping

The Fiscal Penal Code provides a laconic definition that an unreliable ledger is a ledger kept contrary to the actual state of affairs (Article 53 § 22 of the Fiscal Penal Code). What a ledger is is explained in Article 53 § 22 of the Fiscal Penal Code. ledgers are:

1) accounting books;

2) tax revenue and expense ledger;

3) records;

4) register;

5) other similar record-keeping devices that the law requires to be kept, especially the records of a cash register.

The unreliability of the ledger consists in including in it events that do not take place in reality, as well as in not including certain events while including others. For example, conduct punishable under this regulation will be the unreliable preparation of an inventory, or posting VAT invoices that did not document actual transactions.

Defective bookkeeping

Article 61 § 3 of the Penal Code also criminalizes defective bookkeeping. A defective ledger is a ledger kept in violation of a legal provision. Defectiveness is a concept broader in scope than unreliability. Any ledger that is unreliable will at the same time be defective, but not the other way around. Defective bookkeeping is the failure to observe the formal conditions associated with bookkeeping.

Who can be held criminally liable for unreliable or defective bookkeeping?

The criminal act in question can be committed only by the taxpayer who is obliged to keep the ledger or by the person entrusted with keeping the ledger.

The criminal act of unreliable or defective bookkeeping can only be committed intentionally, with direct or alternative intent. However, it should be pointed out that the characteristics of the books, such as unreliability or defectiveness, are objective in nature. Indeed, from the perspective of financial law, it is irrelevant whether the irregularities in keeping the books occurred as a result of culpable behavior or not (G. Łabuda [in:] P. Kardas, T. Razowski, G. Łabuda, Fiscal Penal Code. Commentary, 3rd edition, Warsaw 2017, Article 61.).

The case law emphasizes that the number of erroneous entries does not determine the willfulness of their introduction into the books. After all, it is certainly possible to intentionally enter a single unreliable entry in the books, as well as it is possible to keep the books in a very careless manner and inadvertently enter a large number of inconsistent entries.

What is the penalty for unreliable or defective bookkeeping

The offense of unreliable bookkeeping under Article 61 § 1 of the Criminal Penal Code is punishable by a fine of up to 240 daily rates. The lowest number of rates is 10. Until the end of June 2023, the daily rate is from PLN 116.33 to PLN 46,533.33. From July 1, 2023, the daily rate will be from PLN 120 to PLN 48,000.

The offense of unreliable bookkeeping of the privileged type or defective bookkeeping will be punishable by a fine expressed as a sum. From July 1, 2023, the minimum fine will be PLN 360, and the maximum fine will be PLN 72,000. The fine imposed by a criminal fine may be up to PLN 18,000.

Summary

From the above article, we can see that it is worthwhile to take care of the accuracy and correctness of your tax books in order to avoid sanctions in the form of a fine, as well as a criminal record in the event of a conviction.