Publishing information on tax strategies as modern pillorying – selected issues

Abstract

Background: The subjects of analysis are the provisions on mandatory publication of information on the applied tax strategy within Article 27C of the Corporate Income Tax Act. This regulation is interesting in that it theoretically represents a change in the way the legislator thinks about sealing the tax system. Therefore, the addressee of the published information is to be the whole of society, not the tax administration itself. In this article, an attempt will be made to signal several dangerous tendencies of the legislator in the formulation of new reporting obligations.

Research purpose: The purpose of this article is to analyse the provisions on mandatory publication of information on implemented tax strategy in terms of constitutional principles applicable to the creation of tax law. The evaluation of the obligatory publication of tax strategies obtained in this way will also serve to draw preliminary conclusions on possible corrections, or ways of developing Polish institutions of information on tax strategies. The proposed changes may bring Polish regulation closer to implementing the objectives of social control, emphasised in the explanatory memorandum to the Introductory Act. The whole project will be complemented with an analysis of Polish regulations on obligatory disclosure of information on implemented tax strategy in the context of regulations functioning in other countries.

Methods: The article uses a dogmatic and legal analysis and a comparative analysis of Polish laws with Australian and British laws. A comparative analysis of the jurisprudence of the Constitutional Tribunal was also carried out. The analysis will also include a verification of motives, which the legislator included in the justification of the act introducing the new obligation.

Conclusions: It appears that although the legislator set ambitious goals for the new regulation, this violates a number of constitutional principles, including the principle of proportionality, the prohibition of legal retroactivity, and the principle of correct legislation. This is all the more worrying because the legislator was aware of the regulations introduced in other states, which achieve the assumed objectives better