PAC will rule on extent of fiscal confidentiality

The HFHR has filed a complaint with the Provincial Administrative Court in Warsaw. The pleading concerned a decision of the Minister of Finance to deny the Foundation access to the document entitled “Responsibilities of Tax Audit Offices for 2013”. In its decision, the Minister argued that the requested document was covered by fiscal confidentiality, and as such was not subject to disclosure under the Access to Public Information Act.

In February 2013, the web portal of Gazeta Prawna, a national daily, informed that the Ministry of Finance had published the document in question. It announced the introduction of the “minimum threshold of effectiveness” of tax audits, set at the level of 71 percent. This figure stands for the percentage of audits which are to be concluded with detecting irregularities. Some of the experts quoted by the daily remarked that the wording of the provision may encourage tax authorities to become too officious and overzealous in investigating infractions.

The HFHR assessed the case as part of its programme The Law Clinic “Human Rights and Taxes” and decided to request for access to the document under the public interest disclosure procedure. In March 2013, the General Inspector of Treasury Control refused to disclose the information, claiming that it was protected by the fiscal confidentiality obligation under the Fiscal Control Act. The Minister of Finance, acting as the second instance body, upheld the Inspector’s decision.

In its complaint to the PAC the Foundation submits that both the General Inspector and the Minister had erred in interpreting the notion of fiscal confidentiality. The officials claim that the relevant definition is laid down in art. 34(1) of the Fiscal Control Act, which reads that all information collected and processed in the course of tax audits is protected under fiscal confidentiality obligation. In other words, the protection should extend to all information at the disposal of a tax audit office, no matter by whom and in what circumstances it has been developed.

“In our opinion such a definition would be too broad and in violation of the constitutionally guaranteed right to access to public information. Therefore, it must be assumed that tax authorities should apply the provisions of the Code of Tax Procedure, which stipulate that the confidentiality obligation pertains only to such information which may constitute personal data of taxpayers enabling their identification”, comments Marcin Szwed, a HFHR’s lawyer and the coordinator of the programme Law Clinic “Human Rights and Taxes”.

Moreover, the HFHR noted that the reasoning of the authorities was inconsistent: if all information maintained by tax bodies was to be covered by the confidentiality obligation, then it would be against the law to disclose even an abstract from the “Responsibilities of Tax Audit Offices for 2013”, whereas such a document may be downloaded from the official website of the Ministry of Finance.