Month: September 2015

The Parliamentary Commission of Economy is working on the draft bill of the act under the name of the Business Law (printout 3807). This draft is to be a “constitution for entrepreneurs”, including a catalogue of basis rights and guarantees for entrepreneurs. This seems to be a very favourable solution.

Let’s take a look at a few fundamental standards of this act according to which entrepreneurs will conduct their businesses:

1. The principle that “Whatever is not forbidden by law is permitted by law” – henceforth, in the areas which are not regulated by law, entrepreneurs will be able to make free choices and select their own measures, provided that the same shall not infringe on the rights and freedom other entities.

2. The principle of friendly interpretation of regulations by public administration authorities – in the case of interpretation doubts which cannot be removed (and also in the case of multiple interpretation options), authorities should settle the matter in a way that does not deteriorate the situation of the entrepreneur.

3. The principle of presumed honesty of the entrepreneur – in the case of interpretation doubts which cannot be removed, they should be ruled in favour of the entrepreneur.

4. The principle of reasonable deadlines for entrepreneurs – the draft provides for facilitation of matters related to business activity, the public administration authority will be required to designate such deadlines which will allow the entrepreneur to sufficiently and thoroughly perform a given action.

5. The principle of legitimate expectations of the entrepreneur – according to which, public authorities will have to take action with regard to the entrepreneur in accordance with the well-established practice and a clear guidance as to how to settle the matter.

6. Extension of the maximum permissible suspension period in business activity up to 36 months.

Will such basic principles of free economic operation become effective? We will see … However, the mere fact of initiating a discussion on how to facilitate economic activity in Poland was necessary! This draft act indicates that the regulator is ready to meet the expectations of entrepreneurs! A very good start indeed…

Following the work of the Polish Parliament, the newly adopted act (of 10 September 2015) on the amendment of the Tax Ordinance Law introduces significant tax changes for entrepreneurs.

The general aim of this amendment is to simplify tax procedures and improve the tax collection system.

The most important changes are as follows:

1. Register of General Powers of Attorney

Introduction of a general power of attorney – in addition to the specific power of attorney for individual matters – based on which the taxpayer may be represented in all tax matters. Such powers of attorney will be submitted electronically to the central register, and exempt from tax duty.

In our opinion, a central register of general powers of attorney is a solution that will enable the taxpayer to act through its professional attorney, without the necessity of furnishing copies of the power of attorney in each individual case.

2. Changes in calculating late payment interest

Calculation of late payment interest will be carried out in accordance with two additional rates:

• Reduced rate (50% of the late payment interest) – in order to promote self-correction of errors in declarations submitted by taxpayers

• Increased rate (150% of the late payment interest) – in order to prevent tax avoidance in high risk areas, such as VAT, excise duty, customs duty

You could say that finally, the taxpayer who corrects the declaration on its own initiative will be treated more favourably than those ‘caught’ by the tax office. A good solution for reliable taxpayers!

3. “Group” tax interpretation

The changes involve also the introduction of a group application for legal interpretation of tax provisions. Thus, apart from the individual interpretation, the tax authority will also issue group interpretations applicable to a bigger number of taxpayers with similar factual status. This change should be regarded as a milestone!

We do hope that such positive proposals for taxpayers will be put into practice.

The Act is to enter into force as of 1 January 2016. The draft is still waiting to be signed by the President.

While reviewing the current case-law of Regional Courts in cases involving complaints lodged against the decisions of the National Board of Appeal, I came across a very interesting ruling of the Regional Court in Kalisz of 26 March 2015. The ruling was issued upon the complaint of the Chairman of the Public Procurement Office against the decision of the National Board of Appeal of 5 November 2014.

Wrongful exclusion of the Contractor

In the case in question, the Contracting Authority excluded the Contractor from public tendering after calling the Contractor to supplement relevant (original) documents in paper form. The Contractor furnished the documents by fax and email with a secure electronic signature verified by a valid qualified certificate.

The National Board of Appeal upheld the position of the Contracting Authority and dismissed the appeal by the Contractor – in its justification, the NBA stated that the Contracting Authority was entitled to limit the form in which the required documents were to be submitted.

The Contracting Authority is not entitled to determine the form of supplemented documents

This decision was objected by the Regional Court in Kalisz. In its ruling, the Court emphasised the fact that the Contracting Authority, in calling the Contractor to supplement the documents confirming fulfilment of conditions for participation in the tendering procedure, may not limit the form of such documents to hard copies (paper form). What is more, the Contractor may submit such documents in electronic form. Thus, the exclusion of the Contractor by the Contracting Authority and the position of the National Board of Appeal have no justification.

Moreover, the Regional Court confirmed that the Contracting Authority was entitled to demand the original document or a notarised copy thereof only if the copy submitted by the Contractor was illegible or there were doubts as it its authenticity. However, such requirement may be placed by the Contracting Authority only after it has reviewed the submitted copy and not prior to its submission by the Contractor.

The Contractor shall decide on the form of supplemented documents.

In accordance with the contents of § 7 of the Regulation of the Prime Minister of 19 February 2013 on the types of documents submitted, the Contractor is entitled to decide on the form of documents supplemented by it upon the request of the Contracting Authority, with regard to documents confirming fulfilment of conditions for participation in the tendering procedure. The Contractor may submit such documents in paper or electronic form and the Contracting Authority is not authorised to limit such form.

For reference, in accordance with § 7 of the abovementioned Regulation, documents may be submitted in the original or in the form of copies authenticated by the Contractor. And in the case of electronically submitted documents, they have to be accompanied by a secure electronic signature verified by a valid qualified certificate.