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Always-precise fiscal confidentiality privilege

The Supreme Administrative Court admitted a complaint in cassation filed by the HFHR against the refusal to disclose the document entitled “Responsibilities of Tax Audit Offices for 2013”.

The HFHR applied to the Minister of Finance for the disclosure of the document because, according to media reports, it introduced a “minimum threshold of effectiveness” of tax audits, set at the level of 71 per cent. This figure stands for the percentage of audits that are expected to detect irregularities. Both the Minister of Finance and, subsequently, a Provincial Administrative Court, denied the Foundation access to the document.

Moreover, the PAC, having refused the HFHR’s request to disclose the document, said that in law there were two types of tax information covered by the fiscal confidentiality privilege. According to the ruling, the privilege extends to all information collected and processed in the course of tax audits. In other words, the protection should be awarded to all information at the disposal of a tax audit body, no matter by whom and in what circumstances it has been developed.

The HFHR filed a cassation complaint in the dispute. In its complaint to the Supreme Administrative Court, the Foundation alleged a violation of the right to public information. The SAC found that the content and meaning of art. 34 of the Fiscal Control Act clearly indicates that only the information collected and processed in the course of tax audits is subject to fiscal confidentiality privilege. Therefore, the document the HFHR asked for, a policy paper governing activities of fiscal authorities, does not fit into this category.

The SAC ruled that under Polish law the obligation of fiscal confidentiality pertains only to such information that may enable the identification of individual taxpayers.

The Law Clinic “Human Rights and Taxes” worked on the case. Mr Artur Pietryka appeared before the SAC on behalf of the HFHR.

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