TK verdict: Professional secrecy of a tax advisor in light of the amended Tax Ordinance regulations – transfer of information on a tax scheme (MDR)
On July 23, 2024, the Constitutional Tribunal (case no. K 13/20) reviewed an application by the National Council of Tax Advisors regarding the constitutionality of certain provisions within the Tax Ordinance and the Act on Tax Advisory Services in relation to the Polish Constitution. The case concerned the obligations imposed on tax advisors to disclose information on tax schemes and the associated breaches of professional secrecy.
The Tribunal ruled that Articles 86b, 86d, 86e, and 86f in conjunction with Article 86a of the Tax Ordinance, as well as Article 37(4)(2) of the Act on Tax Advisory Services, are unconstitutional insofar as they impose an obligation on tax advisors bound by professional secrecy to disclose information on tax schemes, without sufficiently defining the criteria and procedure for exemption from this obligation. These provisions violate Articles 2, 17(1), 49, and 51(2) in conjunction with Articles 31(3) and 47 of the Polish Constitution.
Furthermore, Article 28(3) of the Act of October 23, 2018, imposes an obligation on tax advisors to report domestic tax schemes implemented prior to the enactment of this law. These provisions conflict with Article 2 of the Constitution, thereby infringing the principle of citizens’ trust in the state and the principle of legal certainty. As a result, tax advisors should not be required to report such schemes if they were implemented before the entry into force of the October 23, 2018 amendment.
The Tribunal also decided to discontinue proceedings in other respects. This judgment emphasizes the necessity of protecting the professional secrecy of tax advisors and the need for clear legislative provisions regarding reporting obligations to avoid infringing on principles of trust in the state and proper legislative standards. The Tribunal also reminded that a taxpayer should be able to determine their obligations based on statutory law rather than explanatory notes, interpretations, or informational documents, which was the case in the application of the MDR reporting provisions.