Salle / Hall : Bibliothèque Cujas - Salle de conférences
Horaire / Schedule : 15h05 - 16h25
Président de séance : William Gilles (Université Paris 1 Panthéon-Sorbonne, President de l'IMODEV)
Langue / Language : Português/English
The subject of this elaboration is presenting and evaluating the Polish regulations that oblige the tax administration to publish on the Internet all issued tax rulings. This obligation is implemented by the authority issuing tax rulings and applies to any tax rulings given by this body - not only to „general” tax rulings, but also to „individual” tax rulings. Not only the recipient (the addressee) can read up on the content of any individual tax rulings, but also anyone looking for information about practice of the tax administration.
Publishing all tax rulings fits into the concept of "open government".
This purpose of the regulation is also consistent with the purpose of the institution of tax rulings. Tax rulings have to inform taxpayers about understanding of tax law by the tax administration. They thereby allow the taxpayer to submit tax returns that are correct, because it is prepared based on the knowledge of how the law is understood by the tax administration. It is important therefore, that the access to the content was as wide as possible, and this is possible when using the most popular and "efficient" current communication tool, which is the Internet.
The obligation to publish individual tax rulings issued realizes, however, only informative purposes. Polish law protects the taxpayer who obeys the received tax ruling and submits tax return in accordance with this tax ruling. However, the legal protection associated with the use of the individual tax ruling applies only to the taxpayer who requested the issue of tax rulings and who is the addressee. This protection does not apply to the other taxpayers who only read the tax ruling on the Internet, but formally did not request it - even if their tax situation was exactly as the situation described and assessed in the published tax ruling. In the event of a litigation with the tax authority, the published individual tax ruling, but issued at the request of another taxpayer, may therefore constitute an argument in the pleadings filed by the taxpayer, but without significant legal consequences for him, for Tax Administration and the Tax Court. Therefore, legal consequences of the use of the individual tax rulings published on the Internet are only relevant for their recipients. For taxpayers who receive information published by the tax ruling on the web page, in case when they are not being addressed to them, such ruling can only be a guideline, as in the future the tax administration will assess the facts identical with those for which tax rulings was issued.
There is no neutrality in the interpretation of any tax principles, since these are vectors that inform the entire system. When interpreting principles and tax breaks the principle of equality is presented in unremovable, so that the law is applied giving priority to human rights, as well as smoothing out state duties of citizens. Equality and neutrality permeate and topically directed interpretive activity. Rights such as health, employment, environment, can not be flattened by a tax rule. The principles of progressivity, universality and generality are smoothed when poise the principle of equality and neutrality of taxation. One must consider greater transparency in the application of tax principles and the management of public services, especially those related to human rights, including distribution lists. Equality and neutrality are topical guidelines for the interpretation of tax law and state duties of citizens.
While business firms or corporations primarily function as a wealth-generating agent, it cannot be ignored that these firms – in their Corporate Social Responsibility or CSR practices – have evolved beyond making simple charitable contributions, as contemporary CSR practices are now turning into an undertaking of what was traditionally governmental functions.
This is most apparent in Central Philippines, wherein after a super typhoon caused the destruction of US$ 12 Billion worth of infrastructures and properties, the Philippine National Government adopted a rehabilitation program in which affected areas were virtually entrusted to 17 different private corporations. These corporations were put in charge of reconstruction and rehabilitation efforts and in the process provide community-wide education, health, housing, and livelihood services – services traditionally thought to be a responsibility of the Government. The term “political CSR” has been advanced by Andreas Scherer and Guido Palazzo to describe this extended model of governance wherein business firms contribute to global regulation and directly provide public goods.
The US$ 12 Billion spent by the private corporations will however be claimed, pursuant to Philippine Tax Code, as a 100% deduction against the income tax liability of these same corporations in the coming years. This means that the funds spent by the private corporations are in effect ‘loss tax revenue collections’ for the government – money that if collected by the Government would have been use for social services in the people’s benefit, just the same. The greater implication is that the funds spent by private corporations – a diminishment in taxpayers’ would have been revenue – are not subjected to the same stringent auditing and transparency safeguards applied to public fund spending, thus undermining good governance imperatives.
The rationale for giving this tax incentive to corporations is of course easily apparent. The incentive rationale was written into the tax statute, though, at a time when corporate charitable donations and CSR spending are merely of symbolic and partnership-forging value. But the institutional weakness of Government in responding to grave public emergencies has created a space for private corporation take-over of public goods provisioning. Given this, a ‘quasi-public fund’ characterization ought to be imputed to funds that are spent by private corporations for political CSR, but which are claimed for 100% tax deduction purposes. The quasi-public characterization of funds for political CSR should ergo make the funds subject to some length of public scrutiny.