The Fiscal Penal Code adopts the principle that tax offences and petty offences may only be committed intentionally, and there are only two exceptions to this principle.
Being aware that full knowledge of tax law norms is a fiction, even among professional entities, a very convenient proposal for judicial practice was formulated in legal scholarship: to assume that awareness of tax law norms results from the very fact of bringing about the factual situation to which these norms refer. According to this proposal, the basis for assuming awareness of a violated norm would not be the actual familiarity with it, but the fact of doing something (e.g. making a sale or donation) to which this norm refers. The authors do not agree with this proposal. They support the view, presented in case law, according to which the fact that someone should know certain tax norms does not automatically mean that they know them, therefore their awareness should be proven each time against the background of the facts of a given case.
For the purpose of attributing the external elements of tax torts, it is irrelevant that the perpetrator was guided by the goal of reducing the tax burden, because such a goal is natural for all taxpayers and, in principle, unobjectionable. What is objectionable is only its unlawful implementation, i.e. attaining the goal in violation of tax law norms.
From the fact that the construction of the statutory characteristics of tax torts in the Fiscal Penal Code is based on a close connection between facts (events, actions, situations) and norms that regulate them (e.g. „tax evasion” in Article 54(1) of the Fiscal Penal Code) it follows that the taxpayer’s unawareness that they are violating some norm of tax law constitutes an error as to the element of a prohibited act, which excludes intent. It is not possible to intentionally evade taxation if one does not know that one is violating some norm ordering taxation of the transaction one engages in. Therefore, an error as to the statutory element excluding intent under Article 10(1) of the Fiscal Penal Code may concern both the factual situation and the norms of tax law that refer to it.
The second type of error excluding guilt (not intentionality) is an error as to criminal liability, regulated in Article 10(4) of the Fiscal Penal Code, i.e. unawareness that a specific violation of a norm of tax law is subject to punishment in this Code.
In terms of the construction of both the aforementioned types of error, the presented approach of the Fiscal Penal Code differs significantly from the approach adopted in the Penal Code. This has significant practical significance. Unfortunately, this is not always noticed in practice, because the relevant formulations of both these Codes show subtle linguistic differences.