Unreliable recordkeeping – what is it and how to defend yourself effectively?

The offense regulated in Art. 303 of the Penal Code is commonly referred to as unreliable record keeping. It includes not only incomplete documentation, but also a complete failure to keep the documentation required by law. A distinction should also be made between two crimes, which, due to the relatively similar harmfulness of the act and the features of the crime.

Unreliable maintenance of accounting records

This concerns the frequent lack of distinction between not keeping any or part of the documentation and falsifying or counterfeiting documents. It should be noted that counterfeiting or falsification of documents while conducting business activity is considered to meet the conditions of the quoted provision if a material damage has been caused. However, the counterfeiting or falsification of documents itself has been regulated in Art. 270, and the sanctions resulting from it are sometimes more severe than for unreliable record keeping. What to do if you are accused of creative accounting?

What does unreliable recordkeeping include?

The provision itself does not limit the entity to which material damage may be caused. It may be a natural person, a legal person, an organizational unit without legal personality, and in particular the State Treasury. The provision itself indicates three types of actions that may cause material damage: failure to keep records, unreliable record keeping and keeping it in a manner that is not true. They are put on an equal footing as they can cause similar harm by taking action or not doing it despite being required by law. According to the adopted view, liability is not only borne by the entity conducting business activity, but also by the entity commissioned to keep the records of a given company, and through its actions it leads to material damage.

What sanctions can be imposed for unreliable record keeping?

Sanctions include financial, tax and criminal sanctions. In Art. However, Article 303 of the Penal Code indicates criminal sanctions, the distinction of which results from the degree of the material damage itself. The overall term of imprisonment was limited to three years. There is no indication of the lower limit, so it can be a year, 5 days or 3 months. The legislator only indicated that the sentence may not exceed 3 years, however, adjudicating such a long period of imprisonment remains an exception. A different position should be adopted in the event of significant material damage. The legislator indicated the lower and upper limit, i.e. 3 months, as the lower and 5 years as top. This is due to the increased degree of harmfulness of a given act. On the other hand, in order to limit the reduction in the severity of the penalty, for acts of minor importance, i.e. causing less damage or caused by an action not aimed at causing significant material damage, the legislator indicated the year as the upper limit and indicated the penalty of restriction of liberty as an alternative.

Author:

Joanna Krajewska

Tax Advisor, ACCA

 

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