Misdemeanour and criminal tax offence – on what amount?

What constitutes a prohibited act under the Fiscal Penal Code?

Firstly, one must consider the very concept of a prohibited act and the characteristics that determine whether an entity’s actions are deemed unlawful under the Fiscal Penal Code. Article 53 of the Fiscal Penal Code sets out the specific definitions of the terms used in the Act, including a detailed description of the concepts of a prohibited act, a fiscal offence and a fiscal misdemeanour. In order to fully understand the criteria for distinguishing between offences and crimes, one must first grasp the definition of a prohibited act itself. Pursuant to Article 53(1) of the Fiscal Penal Code, a prohibited act is conduct exhibiting the characteristics specified in the individual provisions of the Code, provided that it is not necessary for it to constitute both a criminal offence and a fiscal offence.

Fiscal offences and fiscal misdemeanours

Following on from the prohibited act, Article 53(2) of the Fiscal Penal Code refers to the statutory definition of a fiscal offence. According to the cited provision, a fiscal offence is an act prohibited under the Fiscal Criminal Code, punishable by a fine calculated in daily rates, a restriction of liberty, or imprisonment. In turn, a fiscal misdemeanour, which is the subject of Article 53 § 3 of the Fiscal Penal Code, is also a prohibited act, just like an offence, with the difference, however, that the prescribed penalty for a misdemeanour is calculated not by rates but as a fixed sum. The provision also specifies a condition whereby an offence is deemed to have been committed if the amount of the public-law liability reduced or at risk of being reduced, or the value of the object of the act, does not exceed five times the minimum wage at the time of its commission. Thus, the legislator has identified the monetary dimension of the penalty as the main feature distinguishing crimes from offences; nevertheless, in the context of sanctions for offences, there is a variable in the form of the ‘minimum wage’ specified in the text of the regulation.

Minimum wage as a variable criterion

As is the case with prohibited acts, offences and fiscal misdemeanours, the Fiscal Penal Code contains an explanation of this concept in the glossary of Article 53, and in essence a reference to the relevant Act. Although it has various legal meanings in the Fiscal Penal Code, under Article 53 § 3 of the Fiscal Penal Code it constitutes a statutory criterion for distinguishing between offences and misdemeanours involving the reduction of a public-law liability or those involving property or rights of a specific value. Pursuant to Article 53 § 4 of the Fiscal Penal Code, the minimum wage is the wage for work determined in accordance with the provisions and on the basis of the Act on the Minimum Wage of 10 October 2002. Importantly, in connection with the regulation in question, it is also necessary to relate the minimum wage to a temporal criterion, i.e. in the context of determining the penalty, the amount of the minimum wage in accordance with the Minimum Wage Act at the time the prohibited act was committed must be chosen as the benchmark. This stems from the frequency of changes to the minimum wage, meaning that setting a relatively fixed penalty for both offences and crimes would not be commensurate with the actual value of the damage caused on the date the offence was committed.

Up to what amount is it a misdemeanour, and where is the threshold for a criminal offence?

In accordance with Article 53(3) of the Code of Fiscal Offences, which relates to fiscal offences, if the amount of the public-law liability evaded, such as unpaid tax, does not exceed five times the minimum wage, such an act will constitute a fiscal offence. In view of the increase in the minimum wage from January 2024 and from July 2024, the threshold determining whether an act constitutes a fiscal offence or a fiscal crime will also change. From January 2024 to 30 June 2024 this will be PLN 21,210.00 (5 x PLN 4,242.00), and from 1 July 2024 to 31 December 2024, PLN 21,500.00 (5 x PLN 4,300.00). It must therefore be concluded that an amount exceeding this threshold will result in liability for a fiscal offence. Of course, the dualistic distinction between offences and misdemeanours remains invariably dependent on the current minimum wage rates, and is also directly linked to the constituent elements of offences and misdemeanours within the meaning of the Fiscal Penal Code; nevertheless, under the current legal framework, the threshold of five times the minimum wage remains the dividing line between these two types of prohibited acts within the context of fiscal criminal law.