Fiscal will not inform the taxpayer that it has accessed information from his bank account

New powers

In accordance with the amended wording of Article 48 of the Act of 16 November 2016 on the National Tax Administration, a bank shall also be obliged, at the request of the head of a tax office, to provide information regarding “bank accounts held or jointly held, or powers of attorney to manage bank accounts, the number of such accounts or powers of attorney, the turnover and balances of such accounts, specifying the dates and amounts of individual credits, the dates and amounts of individual debits from the accounts and their titles, and, where applicable, their senders and recipients”.

Until 30 June 2022, requests for such information could be made by the Head of the National Revenue Administration and the head of a customs and tax office. At the same time, until 30 June 2022, the tax authorities could only make the above request for information in relation to natural persons who had the status of a suspect in a case, i.e. persons against whom charges had already been brought. However, the amendment to the provision, which replaces the word ‘suspect’ with ‘natural person’, opens the way for tax authorities to obtain information on persons who are merely under suspicion.

The head of the tax office will be able to request information on a bank account in connection with preliminary proceedings or investigative measures initiated in respect of criminal offences or administrative offences, and fiscal offences or fiscal administrative offences, where where the preliminary proceedings or investigative measures are conducted in connection with acts committed in the course of the activities of a natural person, a legal person or an organisational unit without legal personality. At the same time, the regulations do not provide for an obligation to inform the taxpayer of this fact.

Within the scope of his powers, the head of the tax office may obtain information on the number of bank accounts, account turnover and balances, including the dates and amounts of individual deposits, the dates and amounts of individual withdrawals, as well as their titles and, where applicable, the details of the senders and recipients of payments.

The Ministry of Finance reassures

In response to parliamentary question No. 34443, the Ministry of Finance appears to be reassuring that the amendment to the aforementioned provision and the significant extension of powers in this regard will not lead to abuse of the law.

At the same time, the Ministry notes that the aim of this amendment is to standardise and clarify powers when tax authorities conduct preparatory proceedings concerning, amongst others, a natural person, either independently or before tax procedures are initiated: customs and tax inspection, tax audit, tax proceedings. In response to the parliamentary question, the Ministry also emphasises that the head of a tax office may, in fact, conduct two sets of proceedings in parallel and independently: inspection or tax proceedings and preparatory proceedings in a criminal tax case; this, in turn, justifies the extension of the list of entities authorised to obtain banking information to include precisely this authority.

The Ministry explains the lack of an obligation to inform the taxpayer that information about their bank account has been obtained by stating that “the provisions of criminal procedure do not provide for informing the account holder of the initiation of proceedings”.

However, the Ministry’s response does not dispel doubts

The point is that, until now, the obligation on banks concerned information about natural persons who had the status of a suspect in a case, i.e. persons against whom charges had already been brought. Replacing the word “suspect” with “naturalperson” in the provision, however, opens the way for the tax authorities to obtain information about natural persons who are merely being considered as suspects, whilst they themselves are completely unaware of this. Furthermore, even if the head of the tax office does not yet have sufficient evidence of a possible offence, they will still obtain sensitive information from the bank regarding the taxpayer’s bank accounts. In practice, this provision could reduce banking secrecy to a mere illusion.

Author

Mateusz Kowalski

Radca prawny, Senior Associate

I specialize in Polish tax law, particularly income taxes, as well as international tax law. My experience includes, among others. providing ongoing tax advisory services, preparing legal and tax opinions, drafting requests for individual interpretations, conducting tax reviews. I gained professional experience in Warsaw law firms.

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