Glosa do wyroku Trybunału Konstytucyjnego, P 30/11

In the judgment of 17 July 2012 (No. P 30/11), the Constitutional Tribunal held that insofar as Tax Ordinance Art. 70 §6(1) resulted in suspension of the limitations period on a tax obligation in connection with initiation of a fiscal penal proceeding of which the taxpayer has not been informed, at the latest, by the end of the limitations period on the obligation indicated in Tax Ordinance 70 §1, Art. 70 §6(1) is inconsistent with the principle of the citizen’s trust in the state and the law established by the state, under Art. 2 of the Polish Constitution. On the merits, the judgment has to be viewed positively, as in practice the challenged regulation led to gross violations of the principle of citizens' trust in the state and law. Many doubts may arise, however, as to the effects of the judgment. In particular, the wording of the ruling and several statements contained in the grounds of the judgment may cause controversy as to whether the judgment causes effect only with regard to the provision as amended from 2002-2005 or also to the provision in the current version. Second, due to the fact that the challenged provision was not fully derogated by the Tribunal but only in the limited scope, the current legal status is not clear. Moreover, it seems that in order to increase the protection of taxpayers, the Tribunal should have pointed out that the unconstitutionality of the provision results not only from the fact that the taxpayer is not notified about the suspension of the limitation period but also from the fact that such suspension occurs after the initiation of the proceedings in the in rem phase. To avoid instrumental using of the institution of suspension of the limitation period by the tax authorities, the suspension effect should take place in the in personam phase.