Tax avoidance and the ethical status of state’s actions in the fight against it
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The article delineates the ethical value of tax avoidance and, contrastingly, the regulations towards preventing such actions. Presenting this phenomenon, the author seeks its assessment and evaluates the actions of the state and its organs aiming at tax avoidance. The general anti-abuse clause is crowning the anti-tax avoidance methods; its character is – simplistically put – similar to legal analogy. Moreover, zasada władztwa daninowego (the principle according to which the state has the possibility to impose taxes by way of legislation) regulated by Article 217 in conjunction with Article 84 of the Polish Constitution allows the tax obligation to be expressed statutorily – it refers to the subject, object and tax rates. Tax provisions may be used to tax some occurrences (subjectively, the provisions are used by tax authorities) by legal fiction; it is possible by employing the aforementioned clause. Essentially, tax law is perceived a field of law in which applying analogy is impermissible. There is a common view according to which it is non-allowable to use analogy to the taxpayer’s disadvantage, even if it led to the infringement of the principle of fair taxation. Tax avoidance is the use of legal methods which are not accepted by the state, whereas the negative assessment of tax avoidance results from the taxpayer’s actions, that is purposeful decrease of financial contribution to the common good, i.e. the state. Simultaneously, the state uses all available methods of countering tax avoidance, at the same time leaving the taxpayer’s interest and other ethical values in the background.
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