Functioning within the legal system, especially through conducting business activities, it is possible to unintentionally fail to fulfill obligations towards the tax authorities. If our misconduct falls under a provision of the Fiscal Penal Code and all prerequisites for criminal liability are met, unfortunately, one can be convicted of a fiscal offense or misdemeanor.
However, the Fiscal Penal Code provides several solutions aimed at refraining from punishing the offender if they behave as expected. A classic example of such an institution, commonly used by anyone who has missed the deadline for filing their annual tax return, is active repentance. However, this article focuses on another institution known as voluntary assumption of criminal liability.
What is voluntary assumption of criminal liability?
Voluntary assumption of criminal liability is a specific institution within fiscal criminal law that results in refraining from punishing the offender for a fiscal offense or misdemeanor.
Procedure
To take advantage of the benefits of voluntary assumption of liability, an application must be submitted to the authority conducting the fiscal criminal proceedings. However, the application must be submitted before the authority files an indictment with the court.
The application is verified by the authority. If the fiscal criminal proceedings authority determines that the application meets the formal requirements and is justified, it should submit a motion to the court instead of filing an indictment. However, it should be noted that the authority has the right, but not the obligation, to submit a motion for voluntary assumption of liability to the court. Therefore, it is advisable to discuss the intention of submitting such an application with the authority beforehand.
Conditions for exercising voluntary assumption of liability
The Fiscal Penal Code sets forth conditions that must be met for the court to grant permission for voluntary assumption of liability. These conditions are as follows:
- The guilt of the offender and the circumstances of committing the fiscal offense or misdemeanor are beyond doubt.
- The full payment of the enforceable public law obligation, if the offense or misdemeanor resulted in a decrease in that obligation.
- The payment by the offender of an amount at least equal to the minimum fine prescribed for the specific prohibited act.
- The consent of the offender to forfeiture of objects, at least to the extent that such forfeiture is mandatory, or, if unable to surrender the objects, the payment of their monetary equivalent.
- The payment of at least a lump sum equivalent to the costs of the proceedings.
At the same time, to obtain permission for voluntary assumption of liability, none of the negative conditions listed in Article 17(2) of the Fiscal Penal Code can be present in the case. These conditions include:
- The fiscal offense is punishable by restricted freedom or deprivation of liberty.
- The fiscal offense, punishable only by a fine, was committed under the circumstances specified in Article 37(1) or Article 38(2) of the Fiscal Penal Code (committing the act under conditions that cause or may cause extraordinary penalty aggravation).
- An intervention has been filed regarding the subject matter subject to forfeiture, unless it is withdrawn by the intervenor before the indictment is filed with the court.
Ruling of the Court in the case of voluntary assumption of liability
When granting permission for voluntary assumption of liability, the court determines the amount paid by the offender as a fine and the forfeiture of objects only to the extent to which the offender has given consent. If the objects cannot be surrendered, the offender must pay their monetary equivalent.
Benefits of voluntary assumption of liability
Reading this article may raise the question: what benefits come from submitting an application for voluntary assumption of liability, apart from the possibility of the court accepting the proposed fine by the offender?
Well, another benefit arises from Article 18(2) of the Fiscal Penal Code, which states that a final judgment granting permission for voluntary assumption of liability is not entered into the National Criminal Register.
Furthermore, paying a specified amount as a fine for a fiscal offense through voluntary assumption of liability does not constitute a prerequisite for fiscal recidivism as defined in Article 37(1)(4) of the Fiscal Penal Code, which would be the basis for an extraordinary aggravation of the penalty.
Summary
As evident from the above article, in cases where a prohibited act under the Fiscal Penal Code has been committed, and there is no doubt about the guilt of the offender and the circumstances of the fiscal offense or misdemeanor, and when other positive conditions are met while no negative conditions are present, it is worth considering the option of voluntary assumption of liability.