In accordance with art. 270a of the Penal Code, "who, for the purpose of being authentic, forges or remits an invoice in terms of factual circumstances that may be relevant for determining the amount of a public law claim or its reimbursement or for refunding another tax claim or using such an invoice as an authentic one, shall be punishable by imprisonment from 6 months to 8 years ". Analysis of the above provisions gives grounds to conclude that it is a prohibited act
- counterfeiting, altering and issuing false invoices for use
- the mere use of a counterfeit / converted invoice
It should be noted at the outset that committing the above offenses requires willfulness, so the person who issues an incorrect invoice because they made a mistake in interpreting the law or simply mistaken the amount will not be held liable. The situation is similar when someone processes an invoice because they are convinced that the data given in it is incorrect and he processes it into the correct one. Criminal liability is actually provided only for those who process, counterfeit and issue false invoices in order to extort VAT refunds that have not previously been paid or have been paid to a smaller extent (the so-called tax carousel) and are fully aware.
In addition to the basic type (described above), the Penal Code also provides for qualified types ("reinforced" - the basic act was committed in a particularly harmful manner, which makes the legislator provide for a higher penalty) - if the invoices amount to high amounts or the perpetrators have made the crime a permanent source of income - and privileged ("lighter" - the act was committed in circumstances justifying milder punishment, for example when the final effects of the act are not particularly socially harmful) - minor accidents.
- Art. 270a §2 and art. 271a §2 - imprisonment for not less than 3 years is a threat if the basic type was committed and at the same time:
the invoice or invoices are for an amount exceeding five times the property of great value (pursuant to Article 115 of the Penal Code, great property of PLN 1,000,000), or
o the perpetrator has made himself a source of steady income,
- Art. 277a §1 - imprisonment for not less than 5 years or 25 years imprisonment threatens if the basic type has been committed and the invoice or invoices amount to more than ten times the property of great value.
- Art. 270a §3 and art. 271a §3 - imprisonment of up to 3 years threatens the perpetrator of the basic type of crime (Article 270a §1 and Article 271a §1) as well as the perpetrator of one of the qualified types - a person whose crime relates to an invoice or invoices amounting to more than five times the property of great value and those which have turned into a forgery of income a permanent source of income (Article 270a §2 and Article 271a §2), in the case of minor importance;
- Article 277a §2 - imprisonment of up to 5 years threatens the perpetrator whose crime concerns an invoice or invoices amounting to more than ten times the property of great value in the event of a minor.
In addition, the legislator introduces extraordinary leniency, waivers of sentences and a non-standard fine. According to the general part of the Penal Code (Article 33), the fine is imposed in daily rates and the highest number of rates is 540, while in the case of forgery of invoices, the fine imposed in addition to imprisonment may amount to up to 3,000 daily rates. Extraordinary leniency applies to perpetrators who have disclosed (notified the law enforcement authority and disclosed all circumstances, other perpetrators, etc.) offenses under Art. 270a and 271a (forgery of basic type invoices or forgery of invoices issued for the amount of over PLN 5,000,000 or making invoice forgery a permanent source of income). If such perpetrators additionally return the financial advantage obtained from committing the crime in whole or in a significant part, they can count on waiving the penalty. In the cases described here, the leniency is decided by the court at the prosecutor's request and it is obligatory, while the waiver of the penalty is also at the request of the prosecutor but depends on the discretion of the court (optional).
Withdrawal from imposing a penalty is not possible if you commit an offense under Art. 277a (forgery of invoices issued for the amount of over PLN 10,000,000). The court may (optionally) leniency extraordinarily if the perpetrator discloses the offense (notified the law enforcement authority and disclosed all circumstances, other perpetrators, etc.) and returns the financial benefit obtained from committing the crime in whole or in a significant part. The issue of extraordinary relaxation and separation is similar not imposing a penalty on persons who disclosed any information about a crime after the initiation of proceedings (provided that the authority did not already have this information).
In conclusion, we remind you that the above regulation was introduced to the Penal Code only by the amendment of February 10, 2017 - earlier, invoice forgery was also prosecuted, but under much broader article 270 of the Penal Code, concerning the alteration or forgery of all documents. It should be noted that the penalty provided for in art. 270 is much lower than in the provisions discussed above - the guilty person is in danger of: a fine, penalty of restriction of liberty or imprisonment from 3 months to 5 years (mitigation of an act of minor importance provides for imprisonment of only up to 2 years; the same penalty threatens preparation for forgery) .
[Legal status as at April 2020]