O dobrej wierze (częściowo) krytycznie. Teoretycznoprawne uwagi na temat normatywnej konstrukcji i fiskalnej efektywności podatku od towarów i usług (VAT)
About Good Faith (Partially) Critically. Theoretical Comments on the Legal Regulation and Fiscal Effectiveness of VAT

Summary/Abstract: In accordance with the CJEU’s case law regarding good faith, a taxpayer cannot suffer negative consequences due to circumstances of which he has no knowledge or influence (behavior of other entities). It is the state budget that should bear the risk of ineffective enforcement of tax due from the seller, while maintaining the buyer’s right to deduct input tax or applying 0% rate, as long as he did not cooperate with or know (could not know) about the fraud. The jurisprudential concept of good faith has met with universal acceptance because it puts the taxpayer’s honesty above the rigor of the tax authorities. However, many objections can be raised against this concept — both of a substantive and procedural nature. In the substantive legal aspect, it breaks the traditional objectivity of tax law. This is not about defending the theoretical purity of the tax, but primarily about the resulting functional consequences (tax collection). The concept of good faith introduces an area of uncertainty to VAT settlements because it makes the deduction of input tax or the 0% rate dependent on vague premises, the content of which is not regulated by law or even specified in advance by the practice of tax authorities and administrative courts. In the procedural aspect, the concept of good faith brings tax proceedings in VAT cases closer to a criminal trial: in order to draw negative consequences, the presumption of good faith (the equivalent of the presumption of innocence) must be broken in the course of an individual trial. This concept directs evidentiary proceedings regarding tax assessment to new areas of subjective factors, previously unknown to tax authorities or administrative courts, even though their examination is not feasible on a mass scale but only as an exception (a feature that distinguishes tax and crime). The concept of good faith is abused and misinterpreted, contributing to VAT fraud. Subsequent rulings of the CJEU are used by fraudsters because, in light of them, it is increasingly easier to abuse the good faith condition for the purpose of unlawful deduction of input tax or application of 0% rate and the resulting VAT refund.

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