The professional confidentiality privilege of tax advisers in the light of the amendments to the Polish Tax Code – tax scheme reporting K 13/20
Ref. No. K 13/20
JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND
Warsaw, 23 July 2024
The Constitutional Tribunal, composed of:
Bartłomiej Sochański – Presiding Judge
Stanisław Piotrowicz
Justyn Piskorski
Julia Przyłębska
Rafał Wojciechowski – Judge Rapporteur,
Recording Clerk – Michał Rylski,
having considered, at the hearing on 23 July 2024 – in the presence of the applicant – the application by the National Council of Tax Advisers, lodged with the Constitutional Tribunal to consider the conformity of:
(1) Article 86b, Article 86d, Article 86e and Article 86f of the Tax Code of 29 August 1997 (Journal of Laws – Dz. U. of 2018 item 800, as amended), added by Article 3(22) of the Act of 23 October 2018 amending the Personal Income Tax Act, the Corporate Income Tax Act, the Tax Code as well as certain other acts (Journal of Laws – Dz. U. item 2193) in conjunction with Article 37(4) of the Tax Consultancy Act of 5 July 1996 (Journal of Laws – Dz. U. of 2018 item 377, with further amendments) as amended by the Act of 23 October 2018 – insofar as adhering to the requirement set forth in those provisions to report a relevant tax scheme results in the obligation to infringe the professional confidentiality privilege by a tax adviser – to Article 2, Article 17(1) in conjunction with Article 31(3), Article 47, Article 49, Article 51(2) and Article 58(1) of the Constitution of the Republic of Poland;
(2) Articles 86a–86o of the Tax Code, added by Article 3(22) of the Act of 23 October 2018:
(a) “insofar as the entry into force of those provisions infringed the principle of citizens’ trust in the state and its laws, the principle of appropriate legislation and the requirement of an appropriate period of vacatio legis” – to Article 2 of the Constitution;
(b) to Article 22 and Article 65(1) in conjunction with Article 2, Article 7, Article 17(1) and Article 31(3) of the Constitution, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (Journal of Laws – Dz. U. of 1993 No. 61, item 284) in conjunction with Article 2 and the Preamble as well as Article 17(1) and Article 45(1) of the Constitution;
(3) Article 28 of the Act of 23 October 2018 – “insofar as it obliges the promoter or the supporter, acting as a tax adviser, to provide the Head of the National Revenue Administration with information on the tax scheme which was implemented before the entry into force of the Act [of 23 October 2018]” – to Article 2 of the Constitution;
adjudicates as follows:
(1) Article 86b, Article 86d, Article 86e and Article 86f in conjunction with Article 86a of the Tax Code of 29 August 1997 (Journal of Laws – Dz. U. of 2023 item 2383, as amended) as well as in conjunction with Article 37(4)(2) of the Tax Consultancy Act of 5 July 1996 (Journal of Laws – Dz. U. of 2021, item 2117, as amended) – insofar as, with regard to tax advisers bound by the professional confidentiality privilege, the provisions impose the obligation to report tax schemes and fail to sufficiently specify the prerequisites for and the mode of exclusion or exemption from the obligation to respect the professional confidentiality privilege – are inconsistent with Article 2 in conjunction with Article 17(1) as well as with Article 49 and Article 51(2) in conjunction with Article 31(3) and Article 47 of the Constitution of the Republic of Poland.
(2) Article 28(3) of the Act of 23 October 2018 amending the Personal Income Tax Act, the Corporate Income Tax Act, the Tax Code as well as certain other acts (Journal of Laws – Dz. U. item 2193) – insofar as it obliges the promoter acting as a tax adviser to provide the Head of the National Revenue Administration with information on the tax scheme within the meaning of Article 86a(1)(10) of the Tax Code (other than the cross-border tax scheme within the meaning of Article 86a(1)(12) of the Tax Code) which was implemented before the entry into force of the Act of 23 October 2018 – is inconsistent with Article 2 of the Constitution.
Moreover, the Tribunal decides:
to discontinue the proceedings as to the remainder.
The ruling was unanimous.
Bartłomiej Sochański
Stanisław Piotrowicz
Justyn Piskorski
Julia Przyłębska
Rafał Wojciechowski