What the Law Actually Says
Article 56 is the most frequently deployed provision in Poland’s fiscal criminal arsenal. It targets the taxpayer who files a return or statement but lies—stating falsehoods or concealing truth. Also punishable: failing to notify authorities of changes to previously declared data. The condition: exposing tax revenue to depletion.
The distinction from Article 54 is fundamental. There, the taxpayer says nothing—files no return, reveals nothing. Here, the taxpayer speaks—but lies. They filed their PIT but understated income. They submitted their VAT-7 but inflated input tax. Formally, they’re in the system; substantively, they’re cheating.
What Counts as “Truth” in a Tax Return
This is where things get philosophically complicated—complicated enough to reach Poland’s Constitutional Tribunal.
In tax returns—particularly those for taxes arising by operation of law (VAT, PIT, CIT)—taxpayers don’t merely state facts. They must independently apply tax law: classify economic events, calculate income, deductible costs, input and output tax.
Legal scholars rightly observe that the knowledge required to properly complete such returns should practically match the expertise of Supreme Administrative Court judges. Yet ordinary entrepreneurs file these forms.
The Constitutional Tribunal, in its September 12, 2005 judgment (SK 13/05), ruled that “truth” under Article 56 is a normative concept—encompassing not just facts, but their proper legal classification. Critically, however, the Tribunal emphasized: tax inaccuracy should not be automatically equated with intentional tax fraud.
Intent: The Prerequisite
Crimes under Article 56 can only be committed intentionally, with either direct or conditional intent.
The Supreme Court has repeatedly stressed (in cases II KK 127/24, II KK 52/23, IV KK 435/18, among others): merely establishing that a company’s president possesses the attributes allowing criminal liability under the representative provisions isn’t sufficient to attribute intent. The prosecution must prove that the perpetrator:
- knew they were stating falsehoods or concealing truth,
- was aware they were exposing tax revenue to depletion,
- wanted this outcome or at least accepted it.
Intent cannot be presumed. A tax decision finding irregularities doesn’t automatically generate fiscal criminal liability.
Tax Fraud vs. Criminal Fraud
Can understating taxes be classified as fraud under the general Criminal Code? The courts consistently answer: no.
The Supreme Court explained in its June 24, 2015 resolution (I KZP 2/15): when a taxpayer self-assesses and remits a reduced amount, there’s no disposition of property by the tax authority. The tax office takes no action—it simply accepts the return and payment. The absence of property disposition precludes fraud under Article 286 of the Criminal Code.
Criminal Code fraud enters the picture only when someone obtains a tax refund (Article 76 of the Fiscal Penal Code)—when the tax authority actually pays out money based on false data.
Fictitious Invoices: Who Bears Responsibility
Issuing fictitious VAT invoices doesn’t, by itself, fulfill the elements of Article 56—the issuer isn’t obligated to pay VAT on nonexistent transactions.
They may, however, be liable for aiding tax fraud committed by the invoice recipient who uses it to reduce their output tax. Condition: the recipient was actually conducting real business and had tax to reduce. If both parties were operating exclusively with fictitious transactions—there’s no tax obligation that could be depleted.
Instrumental Initiation of Criminal Proceedings
A particularly significant line of jurisprudence concerns using fiscal criminal proceedings to suspend the running of tax assessment limitation periods.
The Supreme Administrative Court and regional administrative courts consistently hold: instrumental initiation of fiscal criminal proceedings doesn’t trigger limitation suspension (NSA judgment of September 29, 2022, I FSK 226/22).
When might initiation be deemed instrumental?
- Timing close to the limitation deadline,
- No real procedural activity following initiation,
- Proceedings remain in the in rem phase with no prospect of pressing charges,
- Initiation serves solely to “stop the clock” on limitation.
In doubtful cases, the tax authority must explain in its decision’s reasoning that initiating criminal proceedings was substantively justified, not an abuse of process.
Knowing vs. Unknowing Participation
The courts distinguish two situations of participation in VAT carousels and other tax fraud schemes:
Knowing participation — the taxpayer knew they were participating in fraud. Criminal liability applies; examining “due diligence” is beside the point.
Unknowing participation — the taxpayer didn’t know about the fraud, but can be attributed lack of due diligence. They lose the right to deduct VAT but don’t bear fiscal criminal liability (which requires intent).
Courts emphasize: the tax authority cannot draw alternative conclusions like “either they knew, or they failed in diligence.” Findings must be unequivocal.
Limitation: Peculiarities of Tax Crimes
The limitation period for crimes under Article 56 doesn’t begin from the date of commission, but from the end of the year in which the tax payment deadline fell.
Additionally: limitation of criminal liability also occurs when the tax obligation itself becomes time-barred—even if the crime’s limitation period hasn’t yet expired. This preferential period can shorten the prosecution window.
