The Tax Audit Protocol Under Polish Law

The tax audit protocol (protokół kontroli podatkowej) occupies a position of singular importance within the Polish tax procedure framework. Far from serving merely as an administrative formality, this document constitutes the foundational instrument upon which the legitimacy of subsequent tax proceedings rests. Its proper execution not only determines whether tax authorities may lawfully initiate assessment procedures but also delineates the procedural rights available to taxpayers in contesting administrative findings.

A comprehensive examination of recent jurisprudence emanating from Polish administrative courts, including the Supreme Administrative Court (Naczelny Sąd Administracyjny, hereinafter “SAC”) and the Supreme Court (Sąd Najwyższy), reveals an increasingly sophisticated doctrinal framework governing the formal requirements of the audit protocol. This analysis demonstrates that procedural deficiencies in protocol preparation may, under certain circumstances, preclude tax authorities from pursuing otherwise meritorious claims—a consequence of considerable practical significance for both fiscal administration and taxpayer rights.

II. The Nature and Purpose of the Tax Audit Protocol

A. Statutory Framework and Documentary Function

Pursuant to Article 290 § 1 of the Tax Ordinance Act (Ordynacja podatkowa), the auditing official is obligated to document the course of the tax audit in a protocol. As commentators have observed, the protocol’s purpose extends beyond the mere preservation of factual findings and evidentiary materials; it encompasses the chronological memorialization of all procedural steps undertaken during the audit. The protocol thus serves as the definitive record concluding the tax audit, with the date of its delivery to the audited party marking the formal termination of audit proceedings pursuant to Article 291 § 4 of the Tax Ordinance Act.

B. The Protocol’s Legal Character: Documentary Rather Than Dispositive

The Supreme Court, in its judgment of March 27, 2024 (Case No. II CSKP 1028/22), articulated a definitive characterization of the protocol’s legal nature that merits careful consideration:

“The tax audit protocol constitutes merely a documentary act, the content and effects of which are determined by tax law provisions. The conduct of audit activities culminating in the issuance of an audit protocol does not constitute the exercise of public authority within the meaning of Article 417 § 1 of the Civil Code.”

This pronouncement carries significant implications. The Court reasoned that only an administrative decision—which unilaterally shapes the taxpayer’s legal position through the exercise of imperium—constitutes governmental action in the sphere of public authority for purposes of state liability. The protocol, by contrast, remains preparatory and evidentiary in character. Only a tax decision possesses such authoritative character.

The Voivodeship Administrative Court (Wojewódzki Sąd Administracyjny) in Opole reinforced this understanding in its judgment of April 8, 2021 (Case No. I SA/Op 80/21):

“The tax audit protocol represents a description of the factual state established within the scope of the audit’s subject matter. It lacks definitive or binding character in the sense that the factual state described therein may be subject to subsequent modification upon different findings or assessment. The audit protocol does not create tax obligations.”

This characterization proves essential to understanding the protocol’s role within the broader procedural architecture: it constitutes evidence rather than adjudication, documentation rather than determination.

III. Mandatory Elements of the Audit Protocol Under Article 290 § 2

A. Categorical Requirements

The legislature has specified, in Article 290 § 2 of the Tax Ordinance Act, the essential elements that every audit protocol must contain. These requirements, though enumerated as exemplary, are in fact obligatory, and their absence may render the entire document procedurally defective.

Identifying Elements:

• Identification of the audited party (Article 290 § 2, point 1);
• Identification of the auditing officials (Article 290 § 2, point 2);
• Specification of the audit’s subject matter and scope (Article 290 § 2, point 3);
• Designation of the place and time of the audit (Article 290 § 2, point 4).

Substantive Elements:

• Description of factual findings (Article 290 § 2, point 5);
• Documentation concerning evidence obtained (Article 290 § 2, point 6);
• Legal assessment of the matter under audit (Article 290 § 2, point 6a).

Informational Elements:

• Instruction regarding the right to submit objections or explanations and the right to file amended tax returns (Article 290 § 2, point 7);
• Instruction regarding the obligation to notify the tax authority of any change of address within six months following the audit’s conclusion (Article 290 § 2, point 8).

B. The Description of Factual Findings

As scholarly commentary emphasizes, the description of factual findings must encompass the actual circumstances ascertained at the audited party’s premises and must address all audit activities conducted. Factual findings and evidence obtained should be reflected in separate protocols prepared during the audit, which constitute annexes to the main audit protocol pursuant to Article 290 § 4 of the Tax Ordinance Act. These subsidiary documents include, inter alia, witness examination protocols, inspection records, expert opinions, and official memoranda prepared by the auditing officials.

IV. The Legal Assessment Requirement: A Critical Formal Element

A. The Centrality of Legal Qualification

Arguably the most consequential element of the audit protocol is the legal assessment of the matter under audit, mandated by Article 290 § 2, point 6a of the Tax Ordinance Act. As doctrine instructs: “The legal assessment should make clear to the audited party which provisions were violated and why the authority takes issue with them. The information presented within the legal assessment framework may persuade the audited party of the advisability and necessity of filing an amended tax return.”

B. The SAC’s Foundational Holding in Case II FSK 126/16

The Supreme Administrative Court, in its seminal judgment of February 2, 2018 (Case No. II FSK 126/16), formulated the controlling principle in this area:

“A factual finding of the audit constitutes a disclosed irregularity within the meaning of Article 290 § 2, point 5, in conjunction with Article 165b § 1 of the Tax Ordinance Act, if, in the legal assessment presented in the audit protocol—which is mandatory pursuant to Article 290 § 2, point 6a of the Act—it is characterized as an irregularity inconsistent with tax law.”

The Court’s reasoning illuminates the structural relationship between factual findings and their legal characterization:

“The legal assessment is indispensable in the audit protocol because it provides the basis upon which the tax authority considers initiating tax proceedings justified by those factual circumstances of the audited state of affairs that have been evaluated as irregularities violating tax law. The identification and legal qualification of irregularities also forms the basis for the taxpayer’s deliberations—upon receiving a lawfully prepared audit protocol—regarding the justification for submitting objections, explanations, or an amended tax return.”

C. The Preliminary Nature of Protocol Assessments

It bears emphasis, however, that the legal assessment contained in the audit protocol possesses merely preliminary character. As the Voivodeship Administrative Court in Lublin observed in its judgment of December 2, 2011 (Case No. I SA/Lu 568/11):

“While including a legal assessment in the protocol is of significant importance from the perspective of protecting the audited party’s interests, this does not endow such assessment with absolutely binding character at a potential subsequent stage of tax proceedings. The findings contained in the audit protocol are subject to the rules of evidentiary procedure. Depending on the results of evidentiary proceedings, the tax authority’s position may change.”

V. Service of the Protocol: The Moment of Audit Termination

A. The Statutory Framework for Calculating Time Limits

The audit protocol is prepared in duplicate, with one copy delivered to the audited party pursuant to Article 290 § 6 of the Tax Ordinance Act. The date of protocol delivery marks the conclusion of the tax audit under Article 291 § 4.

The Supreme Administrative Court, in its judgment of December 8, 2023 (Case No. III FNP 1/23), definitively resolved any ambiguity regarding the computation of subsequent time limits:

“The six-month period for initiating tax proceedings, as referenced in Article 165b § 1 of the Tax Ordinance Act, shall be calculated from the date of conclusion of the tax audit, which—pursuant to Article 291 § 4 in conjunction with Article 290 § 6 of the Act—means the date of delivery of the audit protocol to the audited party by the tax authority.”

The Voivodeship Administrative Court in Warsaw, in its judgment of June 18, 2024 (Case No. III SA/Wa 688/24), adopted an identical position: “The date of conclusion of the tax audit is unambiguously defined in Article 291 § 4 in conjunction with Article 290 § 6 of the Tax Ordinance Act—it is the date of delivery of the audit protocol to the audited party.”

B. Consequences of Late Delivery

Notably, delivery of the protocol after the deadline specified in the authorization for conducting the tax audit does not invalidate the activities undertaken during the audit. This follows logically from the protocol’s character as an evidentiary document rather than a final determination.

VI. Protocol Deficiencies and the Initiation of Tax Proceedings

A. The Jurisdictional Prerequisite

Article 165b § 1 of the Tax Ordinance Act establishes a distinctive nexus between the tax audit and subsequent tax proceedings. The provision stipulates that where a tax audit discloses irregularities regarding the audited party’s compliance with obligations arising from tax law provisions, the tax authority shall initiate tax proceedings no later than six months from the audit’s conclusion.

The SAC, in Case II FSK 126/16, articulated the operative principle:

“It follows from Article 165b § 1 and § 2 of the Tax Ordinance Act that tax proceedings, following a tax audit, may not be initiated where the tax audit neither identified nor disclosed irregularities regarding the audited party’s compliance with obligations arising from tax law provisions.”

B. The Exception for Subsequently Obtained Information

The Voivodeship Administrative Court in Szczecin, in its judgment of March 17, 2021 (Case No. I SA/Sz 57/21), elaborated upon the circumstances justifying audit-based proceedings:

“Where the tax audit protocol contains the authority’s findings that already raise doubts regarding the reliability and correctness of transactions concluded by the audited taxpayer with counterparties—thereby precluding the issuance of an unequivocal legal assessment—these constitute information justifying the initiation of tax proceedings within six months from the audit’s conclusion.”

The Court simultaneously identified a significant exception to this temporal limitation:

“Pursuant to Article 165b § 3, point 2 of the Tax Ordinance Act, the tax authority may initiate proceedings after the expiration of six months where it receives information from tax authorities or other authorities justifying the initiation of proceedings. These must be information that the auditors did not previously include in the audit protocol—that is, information previously unknown to the auditors.”

VII. Absence of Legal Assessment: Consequences for the Tax Authority

A. The Preclusive Effect

SAC jurisprudence consistently holds that an audit protocol lacking legal assessment cannot serve as the foundation for initiating tax proceedings. In Case II FSK 126/16, the Court stated unequivocally:

“The tax authority lacks sufficient legal grounds to initiate tax proceedings where the protocol of the concluded tax audit presents only a description of factual findings but does not contain the legal assessment required by Article 290 § 2, point 6a of the Tax Ordinance Act.”

B. The Magnitude of Consequences

The ramifications of this principle are far-reaching. As the SAC observed: “Through the control authority’s omission, the taxpayer may free himself not only from the payment of interest but also from the payment of the principal obligation—that is, the tax itself.”

In its judgment of August 6, 2021 (Case No. I FSK 328/18), the SAC emphasized the protocol’s protective function:

“The audit protocol must specify irregularities in such a manner that the taxpayer may avoid the initiation of tax proceedings by making an appropriate correction that accounts for the identified deficiencies.”

VIII. The Audit Protocol and the Books Examination Protocol

A. The Consolidation Option

Article 290 § 5 of the Tax Ordinance Act provides for the possibility of including within the tax audit protocol findings concerning the examination of books within the scope contemplated by Article 193. In such circumstances, a separate books examination protocol need not be prepared. This matter assumes particular significance in the context of allegations concerning unreliable books.

The SAC, in its judgment of June 14, 2019 (Case No. II FSK 2509/17), confirmed this approach:

“In the case of tax control, the requirement to prepare a separate protocol pursuant to Article 193 § 6 of the Tax Ordinance Act is not necessary, as Article 290 § 5 of that Act indicates that the audit protocol may also contain findings concerning the examination of books within the scope contemplated by Article 193 of the Tax Ordinance Act.”

B. The Distinction in Function

The SAC’s judgment of August 6, 2021 (Case No. I FSK 328/18) introduced a crucial distinction between the functions of these two protocols:

“The purpose of each regulation differs—rebutting the presumption of book reliability serves to enable the conduct of proceedings based on evidence other than tax books, whereas the audit protocol must specify irregularities in such a manner that the taxpayer may avoid the initiation of tax proceedings by making an appropriate correction.”

As doctrine observes, this consolidation option does not extend to circumstances where findings regarding book unreliability or defectiveness are made after the conclusion of the tax audit, during tax proceedings proper. In such cases, preparation of a separate books examination protocol remains mandatory.

IX. The Non-Remediability of Protocol Defects

A. The Principle Against Procedural Cure

SAC jurisprudence unambiguously establishes that a defectively prepared audit protocol cannot be cured (konwalidowany) at the tax proceedings stage. In Case II FSK 126/16, the Court emphasized:

“Any errors and deficiencies in this regard, in the context of Article 165b § 1 of the Tax Ordinance Act, cannot be cured by the authority’s invocation of the argument that the protocol was prepared improperly, and even less so by the subsequent, this time proper, preparation of the protocol.”

Similarly, in Case I FSK 328/18, the SAC held that protocol entries cannot be cured at the proceedings stage, though there exists no obstacle to preparing a books examination protocol within the meaning of Article 193 § 6 of the Tax Ordinance Act—this constituting, however, a distinct procedural act serving a different purpose.

X. The Evidentiary Weight of the Audit Protocol

A. The Protocol as Evidence Subject to Free Evaluation

The audit protocol constitutes evidence in tax proceedings but remains subject to the general principles governing evidentiary assessment. The Voivodeship Administrative Court in Opole, in its judgment of June 3, 2015 (Case No. I SA/Op 251/15), explained:

“The tax audit protocol does not directly concern rights or obligations arising from legal provisions; it is not an act of authoritative or dispositive character regarding rights or obligations. Undoubtedly, however, a protocol prepared pursuant to Article 290 of the Tax Ordinance Act constitutes evidence in tax proceedings and thus is subject to the general principles concerning the assessment of evidence, including the principle of free evaluation of evidence arising from Article 191 of the Tax Ordinance Act.”

B. Significance for Good Faith Assessment

The SAC, in its judgment of September 30, 2020 (Case No. I FSK 1694/17), identified a significant dimension of the protocol’s evidentiary function:

“Protocols prepared by the competent authority following the conduct of an appropriate audit procedure are significant for assessing good faith for the periods to which they pertain and confirm the correctness of the taxpayer’s settlements regarding value-added tax. Such protocols are also significant for assessing good faith with respect to transactions in periods other than those covered by the tax audit, conducted with counterparties regarding whose transactions no irregularities were found, provided no material change occurred in circumstances related to those supplies.”

XI. The Protocol and Administrative Judicial Review

The SAC, in its resolution of February 27, 2014 (Case No. I FSK 60/14), addressed the protocol’s amenability to direct judicial challenge:

“An audit protocol prepared pursuant to Article 290 of the Tax Ordinance Act does not fall within the concept of acts or activities in the sphere of public administration within the meaning of Article 3 § 2, point 4 of the Law on Proceedings Before Administrative Courts. Judicial review of such a protocol is permissible only within proceedings on a complaint concerning a tax authority’s determination in a matter in which the document was admitted as evidence.”

This holding confirms the protocol’s procedural character: it operates as evidence subject to review within the context of challenging substantive determinations rather than as an independently reviewable administrative act. Taxpayers who disagree with audit findings may challenge only the subsequent tax decision through appeals to administrative courts.

XII. Objections to the Audit Protocol: Taxpayer Entitlements

A. The Fourteen-Day Period

Delivery of the audit protocol initiates a fourteen-day period for submitting objections or explanations. The Voivodeship Administrative Court in Białystok, in its judgment of April 28, 2010 (Case No. I SA/Bk 91/10), articulated the protective purpose of this right:

“Where a tax audit is conducted in parallel with tax proceedings, it is incumbent upon the tax authority to ensure that, prior to issuing a decision, the audited party may respond to the protocol’s contents. Otherwise, the protective function of the right to submit objections or explanations to the protocol becomes illusory.”

Submission of objections constitutes a significant procedural entitlement. The auditing officials are obligated to consider the objections and inform the taxpayer of their disposition. The absence of objections from the audited party effectively signifies acceptance of the audit findings.

B. The Right to Amend Tax Returns

Pursuant to Article 81b § 1, point 1 of the Tax Ordinance Act, the right to amend a tax return within the scope covered by the audit is suspended during the audit’s pendency. Following the audit’s conclusion (upon delivery of the audit protocol), this right is restored.

Where the taxpayer files an amended return that fully accounts for the irregularities disclosed in the audit protocol, the authority does not initiate tax proceedings pursuant to Article 165b § 2. The exercise of this entitlement, however, presupposes precise specification in the audit protocol of the irregularities identified and their legal characterization.

XIII. Formal Signature Requirements

A. The Single-Signature Rule

The Voivodeship Administrative Court in Warsaw, in its judgments of December 3, 2010 (Case No. III SA/Wa 1776/10) and November 29, 2010 (Case No. III SA/Wa 1619/10), clarified the signature requirements:

“The absence of a signature by a second person participating in audit activities, not being enumerated in Article 290 § 2, points 1-8 of the Tax Ordinance Act, is not a circumstance from which one may infer a violation of Article 290 § 2 of that Act.”

Similarly, the absence of instruction regarding the obligation to notify of address changes does not invalidate the findings contained in the audit protocol.

B. The Sufficiency of Inspector Signature

The SAC, in its judgment of September 12, 2013 (Case No. II FSK 2563/11), held:

“Since Article 290 § 1 of the Tax Ordinance Act provides for the obligation to prepare the audit protocol by the auditor, unambiguously employing the singular, the preparation and signing of the audit protocol by the inspector (possessing authorization to conduct the audit) must be deemed sufficient and consistent with law.”

XIV. Annexes to the Audit Protocol

The Voivodeship Administrative Court in Olsztyn, in its judgment of August 4, 2011 (Case No. I SA/Ol 414/11), clarified the scope of the delivery obligation:

“The concept of ‘audit protocol’ contained in Article 290 § 1 of the Tax Ordinance Act cannot be understood to include annexes to the audit protocol. An annex constitutes a separate document attached to the main document. Since the legislature in Article 290 § 6 of the Act clearly indicated that only the audit protocol is subject to delivery, this obligation cannot be extended to annexes to the protocol.”

The Voivodeship Administrative Court in Wrocław, in its judgment of November 29, 2016 (Case No. I SAB/Wr 15/16), nonetheless clarified:

“Case files in the course of a tax audit include not only the audit protocol prepared pursuant to Article 290 of the Tax Ordinance Act but also protocols from so-called cross-audits conducted in connection with the ongoing tax audit.”

XV. Customs and Fiscal Audit Distinguished

It bears noting that separate regulations govern the customs and fiscal audit, which constitutes a more invasive form of verification of taxpayer settlements. In the case of customs and fiscal audits, a protocol is likewise prepared, though the procedure is governed in part by different rules.

XVI. Obstructing Tax Audits: Criminal Consequences

A taxpayer who obstructs or frustrates the execution of audit activities exposes himself to fiscal criminal liability. Pursuant to Article 83 of the Fiscal Penal Code, obstructing tax audits constitutes a fiscal misdemeanor or offense, depending on the degree of social harm of the act.

XVII. Disputes with Tax Authorities: Defense Strategies

Taxpayers who have received an unfavorable tax audit protocol should consider professional support in the context of disputes with the tax authority. Critical importance attaches to the timely submission of objections to the audit protocol and, where applicable, preparation for tax litigation.

In the event an unfavorable tax decision is issued, the taxpayer may avail himself of representation in tax disputes before the courts.

XVIII. Conclusion

The foregoing analysis of administrative court jurisprudence and Supreme Court holdings yields the following doctrinal conclusions regarding the tax audit protocol under Polish law:

First, the audit protocol must contain all elements specified in Article 290 § 2 of the Tax Ordinance Act, with particular emphasis on the legal assessment of the matter under audit. This requirement is not merely formal but serves essential protective functions for taxpayer rights.

Second, factual findings unaccompanied by legal assessment do not constitute disclosed irregularities within the meaning of Article 165b § 1 of the Tax Ordinance Act and accordingly do not authorize the tax authority to initiate tax proceedings. This principle represents a significant limitation on administrative discretion.

Third, the audit protocol does not constitute an authoritative act—it does not dispositively shape the taxpayer’s legal position. Only a tax decision possesses such character, rendering the protocol preparatory rather than determinative.

Fourth, defects in the audit protocol cannot be cured at subsequent procedural stages. This principle of non-remediability underscores the importance of proper protocol preparation ab initio.

Fifth, the six-month period for initiating tax proceedings runs from the date of delivery of the audit protocol to the audited party, establishing a clear and administrable temporal framework.

Sixth, a properly prepared audit protocol guarantees the taxpayer the opportunity to file an amended tax return and thereby avoid tax proceedings entirely—a significant procedural advantage.

Seventh, the audit protocol constitutes evidence in tax proceedings subject to the free evaluation of evidence by tax authorities, rather than a binding determination.

Knowledge of the formal requirements governing tax audit protocols and the ability to identify procedural deficiencies may prove determinative in disputes with tax authorities. The cases examined herein, spanning the period from 2021 through 2024, confirm that procedural particulars frequently determine the outcome of tax proceedings—a circumstance that elevates careful attention to formal requirements from mere technical compliance to strategic imperative.

Author: Skarbiec Legal Counsel, a law firm specializing in tax law, tax audits, and tax proceedings

Robert Nogacki

Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.