“Firmanctwo” refers to the act of operating under someone else’s company name or personal identity. While it might seem that such activities, when agreed upon by all parties, fall outside the scope of criminal law, it’s not the case. “Firmanctwo” can constitute both a criminal offense, a fiscal misdemeanor, and is also subject to tax law regulations.
“Firmanctwo” as a prohibited act
According to the Polish Tax Penal Code (k.k.s.), Article 55 § 1, a taxpayer who, in order to conceal the conduct of their business on their account or the actual scope of that business, uses the name, title, or firm of another entity, thereby exposing tax to a reduction, is liable to a fine of up to 720 daily rates or imprisonment for up to 3 years, or both penalties.
A milder form of liability is established when the amount of tax exposed to reduction is of small value, punishable by a fine of up to 720 daily rates.
Moreover, if the amount of tax exposed to reduction does not exceed the statutory threshold (five times the minimum wage at the time of the prohibited act), the offender is liable for a fiscal misdemeanor.
What is involved in “firmanctwo” in practice?
An example of behavior that meets the criteria for this prohibited act could be a situation where a novice entrepreneur, after two years of running their business, lost the right to benefit from preferential social insurance contributions (ZUS). As a result, they decide to cease their business activities and instead use the firm of another entrepreneur who continues to benefit from the preferential ZUS contributions.
Another example, which according to the Article 55 § 1 of k.k.s., leads to exposing the tax to a reduction, is the loss of VAT exemption for small taxpayers. This could motivate a taxpayer to continue their business activities using another entrepreneur’s firm while the latter still benefits from the VAT exemption.
Why is “firmanctwo” punishable?
“Firmanctwo” is punishable because the legislator protects various interests, including the financial interests of the State Treasury, local government entities, the European Union, as well as business turnover, tax order, the interest of the judiciary, and personal rights.
Who can commit the act of “firmanctwo”?
In general, “firmanctwo” involves the cooperation of two parties: the “Firmant” and the “Firmujący.” The “Firmant” is the active party who uses someone else’s name or firm, while the “Firmujący” may cooperate through action (active conduct) or inaction (failing to react to the impersonation by the “Firmujący”). It is also possible that the “Firmant” acts without the consent and knowledge of the “Firmujący.”
To commit the criminal offense of “firmanctwo,” the following conditions must be met: (1) be a taxpayer conducting business activities (in the case of a legal entity and an organizational unit, the responsibility lies with the person representing them); (2) act to conceal business activities or the actual scope of those activities; (3) use another entity’s identity; (4) expose tax to a reduction.
The “Firmujący,” despite being impersonated by the “Firmant,” may also face criminal fiscal liability, either as an accomplice or as a co-perpetrator.
“Firmanctwo” and identity theft
The Polish Penal Code in Article 190a § 2 criminalized behavior that amounts to identity theft. Criminal liability is imposed on those who, by impersonating another person, use their image, other personal data, or other data by which that person is publicly identified, thereby causing them financial or personal harm.
It is possible that a “firmanctwo” offender could commit identity theft with a single act if their intention includes causing harm to the individual while the “Firmujący” remains unaware that their identity is being used. However, such cases should not be frequent, as “firmanctwo” primarily aims to conceal business activities on the offender’s account or the actual scope of those activities.
In summary
As this article shows, great caution should be exercised in business transactions involving activities intended to provide material gain, even in the form of reduced tax burdens, as such actions may constitute a prohibited act.