te słowa wypowiedziane przez wielkiego miłośnika cygar i szampana Winstona Churchilla idealnie oddają działania rządzących w dobie pandemii COVID-19. Mało kto się chyba spodziewał, że zmiany zajdą tak daleko.
Koń trojański
Polskie firmy niecierpliwe czekały na tarczę antykryzysową zapowiadaną jako wsparcie w dobie recesji. Tymczasem skrajnie skomplikowane przepisy tzw. tarczy stały się niejako koniem trojańskim do przemycenia w nich rozwiązań będących realizacją interesów partii rządzącej. Jednym z nich jest przepis pozwalający naczelnikowi urzędu skarbowego zająć majątek firmy jedynie na postawie podejrzenia o udział w karuzeli VAT już na etapie postępowania przygotowawczego. W idei przepis miał pomóc w zajęciu nielegalnego spirytusu, jednak obejmuje on wszystkie gałęzie gospodarki.
Nie ma mowy o niespodziance. To kolejny forsowany w ostatnich latach przepis wpisujący się w trend pozwalający na zajęcie majątku firm w dużej części poza kontrolą sądu. Przepisy o konfiskacie majątku zostały mocno rozbudowane w 2017 roku. Wtedy pojawiło się pojęcie tzw. konfiskaty rozszerzonej. Mimo kontrowersji pomysł się przyjął, a zajęcia majątku w 2019 roku wzrosły o 600% wobec roku poprzedniego. Do tego dochodzi algorytm STIR, pozwalający blokować rachunki firmowe w oparciu o analizę przepływów pieniężnych.
Domniemanie winy
Na tym jednak nie koniec. W dobie kryzysu Ministerstwo Sprawiedliwości zamierza pójść krok dalej i wprowadzić tzw. konfiskatę prewencyjną. Umożliwił to niedawny wyrok Trybunału Sprawiedliwości Unii Europejskiej, który uznał w kwietniu taki mechanizm za legalny.
Polegać ma na tym, że organy ścigania już nie będą musiały wykazywać faktu przeniesienia majątku, czy też tego, że ten majątek służył do popełniania przestępstw lub był nabyty w sposób nielegalny. Ustawodawca chce bowiem przerzucić na firmę ciężar udowodnienia, że jego majątek pochodzi z legalnych źródeł. Jest to zatem w pewnym sensie domniemanie winy. Projekt ten został oprotestowany 8 maja 2020 przez Radę Przedsiębiorczości, skupiającą organizacje pracodawców. Jak podaje portal money.pl “konfiskata prewencyjna obejmuje także własność osób, wobec których nie toczy się żadne postępowanie karne, ale które nie są w stanie wykazać legalnego pochodzenia majątku. Więc nie tylko podejrzani o przestępstwa, ale także osoby, które np. utrzymywały kontakt ze sprawcą przestępstwa, mogą być narażone na utratę dorobku.” Obecnie rozwiązanie jest w fazie prac resortowych.
Takie rozwiązanie to przekroczenie prawnego Rubikonu. Ochrona majątku prywatnego i oddzielanie go od majątku firmy to żelazna zasada, którą zawsze wpajam moim klientom. Dlaczego? Nawet w warunkach stabilnie działającego państwa prawa powinno się odseparować od ryzyka w biznesie. Oddzielenie podmiotu wykonującego działalność operacyjną od tego trzymającego nasz majątek pozwala ograniczyć ryzyko naszych błędów czy złych decyzji. To model standardowo stosowany w gospodarkach rynkowych starszych od naszej.
Obecnie zasada ta jest jeszcze bardziej aktualna. Konfiskata prewencyjna może być niebezpiecznym narzędziem w rękach niestabilnej władzy państwowej u progu kryzysu ekonomicznego. Tak jak pisałem na blogu we wpisie dotyczącym sporu o sądownictwo: prawo własności jest iluzoryczne, jeśli nie ma sprawnych i niezależnych sądów gwarantujących jego ochronę. Po kontrowersjach dotyczących zamknięcia firm bez stanu klęski żywiołowej oraz kryzysu prawnego związanego z trybem przeprowadzenia wyborów prezydenckich, dotychczasowa stabilność i pewność państwa prawa obumiera na naszych oczach. Co z tego, że konfiskata może rażąco naruszać art. 46 Konstytucji, skoro mało kto się nią przejmuje? Co więcej, wprowadzone mechanizmy dotyczące konfiskaty często pozostają poza kontrolą sądową.
Ochrona majątku jak polisa na życie
Jak można zabezpieczyć majątek przed konfiskatą ? Pracując z klientami zazwyczaj wyróżniam 3 poziomy ochrony. Pierwszy to przejście (przekształcenie lub nowa spółka) w ramach prawa polskiego z typowej działalności gospodarczej na spółkę (najczęściej z o.o. lub sp.k.). To samo w sobie znacznie ogranicza ryzyko odpowiadania majątek za długi firmowe. Majątek osobisty może pozostać wtedy naszą własnością lub zostać wniesiony np. do fundacji. Zaletą tego rozwiązania jest jego prostota oraz cena, wadą pełna transparentność oraz pozostanie z majątkiem na gruncie polskiego prawa z mechanizmami opisanymi powyżej.
Drugi poziom to jakikolwiek podmiot zagraniczny na prawie innego kraju, będący poza zasięgiem kontrowersyjnych przepisów o konfiskacie. Trzeci najdroższy poziom to anonimowa struktura zagraniczna oparta o Trust (opisany tutaj), niepowiązana z nami dla osób trzecich. Już wiecie jak Dominika Kulczuk mogła kupić pałac w Londynie, skoro w Polsce komornik nie mógł ściągnąć od niej 8 tyś złotych (więcej tutaj https://bit.ly/2SVp2md)
Masz pytania dotyczące ochrony majątku? Napisz do mnie maciej(at)oniszczuk.com
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