Third-Party Tax Liability in Poland: Articles 110 to 117e of the Tax Ordinance

2026.10.18 Author: Robert Nogacki

Abstract. The Polish Ordynacja podatkowa (Tax Ordinance Act) provides, in specified circumstances, for the subsidiary, joint and several liability of a closed catalogue of so-called third parties for another person’s tax arrears; the catalogue is enumerated in Articles 110 to 117e and ranges from a divorced spouse to a family foundation. The provision most frequently applied in practice is Article 116, which concerns members of the management board of a capital company (a spółka z ograniczoną odpowiedzialnością, a prosta spółka akcyjna or a spółka akcyjna), and it was around that provision that three judgments of the Court of Justice of the European Union, delivered in 2025 and 2026, recast the procedural standard governing such proceedings. The most recent of them, delivered on 16 July 2026 in Case C-158/25, was published in the Official Journal on 5 October 2026 and thereby opened a one-month window, expiring on 5 November 2026, for requesting the reopening of proceedings concluded by a final decision. This analysis sets out the catalogue as it stands after the amendments of 2020 to 2026, the three limitation questions that arise in every case, the transfer of liability for social security contributions and the lines of defence available to a person facing a liability decision.

The Closed Catalogue of Third Parties

The Tax Ordinance divides third parties into several discrete groups. The first comprises the taxpayer’s divorced spouse, a spouse in judicial separation and a person whose marriage has been annulled (Article 110); such a person is liable for arrears arising from obligations that came into existence during the marital community of property, and only up to the value of his or her share in the joint property. The second comprises members of the taxpayer’s family, namely ascendants, descendants, siblings, spouses of descendants, persons in a relationship of adoption and persons cohabiting with the taxpayer (Article 111). This category rests partly on family ties and partly on economic links: the liability concerns arrears arising from a business in which the family member continuously cooperated with the taxpayer and from which he or she derived benefits, and it is limited to the value of those benefits.

The third category is the acquirer of the taxpayer’s assets (Article 112). That liability has been narrowed over time: it originally extended to the acquisition of individual assets of greater value, whereas since 2009 it has been confined to transactions whose object is an enterprise or an organised part of an enterprise. The acquirer is not liable where, exercising due diligence, he could not have known of the arrears; his liability is limited to the value of the enterprise acquired; and it does not extend to arrears omitted from the certificate issued under Article 306g, provided that the acquisition took place within 30 days of its issuance. No liability arises upon an acquisition in enforcement or insolvency proceedings (Article 112a). Related constructs encompass a single-member capital company created through the transformation of a sole trader (Article 112b) and a partnership without legal personality to which an enterprise has been contributed (Article 112c).

The statute then lists a person lending his or her name to another’s business activity (Article 113), that is a person who, with his or her consent, allows his or her name, business name or firm to be used in order to conceal the conduct of a business or its true scale, and who is liable for the arrears which arose while that business was conducted. The next categories are the owner, autonomous possessor or perpetual usufructuary of assets or property rights connected with a business (Article 114) and the lessee or usufructuary of real property, who is liable for arrears arising from the taxation of that property (Article 114a). In these two cases the liability presupposes family, property, capital or employment links between the third party and the person using the assets, and the liability under Article 114 is limited to the value of the assets or rights made available.

A separate category consists of partners in civil-law, registered and professional partnerships and general partners in limited and limited joint-stock partnerships (Article 115), including former partners. In capital companies, including companies in organisation, members of the management board are jointly and severally liable for arrears (Article 116), and in a prosta spółka akcyjna the directors are liable on the same terms. Their liability generally covers arrears arising from obligations whose payment deadlines fell during the period in which they performed their duties, so that resignation from office does not release them from liability for earlier periods. Members of the governing bodies of other legal persons, such as foundations and associations (Article 116a), and liquidators, with the exception of liquidators appointed by a court (Article 116b), are liable on analogous terms. A third party is also a legal person taking over, or created as a result of, the division of another legal person where the assets taken over do not constitute an organised part of an enterprise (Article 117), as well as a guarantor or surety whose security the tax authority has accepted, up to the amount and within the period specified in the guarantee or surety (Article 117a).

The Newer Categories Omitted from Most Commentaries

Many commentaries halt the catalogue at guarantors and sureties under Article 117a. The legislature has since added five further categories, three of which are of the greatest practical significance today.

Article 117b concerns the purchaser of goods listed in Annex 15 to the VAT Act and constitutes the basis, within the Ordinance, for a decision on joint and several VAT liability, the substantive premises of which are laid down in Article 105a of the VAT Act: liability arises only where the purchaser knew, or had reasonable grounds to suppose, that the tax would not be paid, and where none of the statutory exclusions applies, payment under the split payment mechanism foremost among them. From 1 January 2027, by virtue of the Act of 4 September 2026 (Journal of Laws, item 1270), the liability under Article 105a will also extend to services listed in the new Annex 16, although Article 117b itself still speaks exclusively of supplies of goods. Article 117ba, in force since 1 January 2020, introduces liability for paying consideration by transfer to a bank account outside the register of VAT taxpayers, the so-called white list; it concerns transactions for which the statute requires payment through a payment account, that is above PLN 15,000, and it does not arise where the purchaser paid under the split payment mechanism or, within 7 days of ordering the transfer, notified the head of the tax office of the payment to an account outside the register. Article 117c covers the authorised representative (pełnomocnik) who filed the VAT registration application, in respect of arrears of the registered entity arising from activities carried out within 6 months of registration, up to PLN 500,000, unless the arrears were unconnected with the taxpayer’s participation in dishonest tax accounting aimed at obtaining a financial advantage (Article 96(4c) of the VAT Act).

Two further categories concern succession. Article 117d makes the succession administrator (and, in periods in which no succession administration is in place, the persons performing acts of preservation, that is the de facto administrator) a third party liable for arrears connected with the business of an enterprise in succession. Article 117e, added by the Family Foundation Act and in force since 22 May 2023, provides that a family foundation is liable with all its assets, jointly and severally with the founder, for the founder’s tax arrears which arose before the foundation was established. That liability is limited to the value of the assets contributed by the founder (Article 117e § 2); the limit is one of value, not of specific objects, so that enforcement may reach any asset of the foundation, but only up to that amount. The same rules apply mutatis mutandis to a family foundation in organisation (§ 3). It is a provision rarely remembered in succession planning, yet one capable of reaching assets already contributed to the foundation.

It should be noted separately that Article 116a § 1 now expressly covers the management board of a family foundation in organisation, that is of the entity existing from the execution of the founding deed until registration. Members of that board are liable with their personal assets on the same terms as the board of a capital company.

The complete catalogue therefore spans Articles 110 to 117e of the Tax Ordinance, and that is also the scope indicated by Article 133 § 1 of the Ordinance, as amended by the Act of 29 May 2026 (Journal of Laws, item 846), in force since 1 October 2026, which names the third party as a party to tax proceedings. This is an update of a procedural cross-reference which previously ended at Article 117c, not a new basis of liability.

The Nature and Scope of the Liability

The tax liability of third parties is subsidiary in character. Recovery from a third party is contingent upon the ineffectiveness of measures aimed at obtaining the debt from the person primarily liable. The liability is also joint and several, so that the tax creditor may pursue the claim simultaneously against the taxpayer and the third party, and the persons liable answer with all their assets.

Three matters must be kept apart: the premises of liability, which the statute defines separately for each category of third party; the conditions for issuing a decision; and the conditions for enforcement. Under Article 108 of the Ordinance, proceedings on third-party liability may not be instituted before the deadline for payment of the obligation has passed or before the decision determining its amount has been served on the taxpayer, and enforcement against the third party may be commenced only once enforcement against the taxpayer’s assets has proved wholly or partly ineffective, or has been abandoned or not undertaken because it plainly would not have covered even its own costs. Joint and several liability does not displace these limitations. In the case of a board member, the ineffectiveness of enforcement against the company’s assets is additionally a premise of the liability itself (Article 116 § 1); it is established after enforcement has been conducted, although it may be proved by any legally admissible evidence (resolution of the Supreme Administrative Court of 8 December 2008, II FPS 6/08).

The liability does not arise by operation of law. In every case the competent tax authority must issue a decision, and where the premises are satisfied and no ground for exoneration obtains, the decision is mandatory in character and the authority may not refrain from issuing it. The Ordinance contains no general clause permitting the authority to examine whether particular circumstances, such as the principles of social coexistence or important socio-economic considerations, militate against burdening the third party. This remains one of the principal objections raised against the construct. The absence of such a clause does not, however, preclude a separate application for relief in payment: Article 67c § 2 directs that the provisions on deferral, payment in instalments and remission (Articles 67a and 67b) apply mutatis mutandis to amounts due from third parties. A dispute over the existence of liability and an application for relief are two different avenues, pursued separately.

As to its object, third parties are liable for tax arrears, taxes not withheld or withheld but not remitted by remitters or collectors, default interest on tax arrears, advance input VAT refunds not returned within the time limit together with interest thereon, and the costs of enforcement proceedings. The liability extends not only to the arrears of the taxpayer but also to the arrears taken over by the taxpayer’s legal successor (Article 107 § 1a), a solution sometimes criticised as excessively broad.

That scope is, however, curtailed for certain categories of third parties. The most important limitation concerns the purchaser of goods: under Article 117b § 2 that liability encompasses neither default interest accrued before the day on which the decision on liability was issued nor the amounts listed in Article 107 § 2(1), (3) and (4), including the costs of enforcement proceedings. Where arrears date back several years, the difference between the supplier’s full debt and the amount for which the purchaser answers may be considerable, and it is among the first points to be verified upon receipt of a decision.

Adjak, Genzynski and C-158/25: A New Procedural Standard

The first of the judgments which set that standard is the judgment of the Court of Justice of the European Union of 27 February 2025 in the Polish case C-277/24, Adjak, delivered on a reference from the Regional Administrative Court in Wroclaw. The Court held that European Union law does not require a third party to be a party to the assessment proceedings conducted against the company. It does require, however, that in proceedings concerning her own liability the third party be able effectively to challenge the findings of fact and the legal characterisations made in those earlier proceedings, and that she have access to their file, subject to the rights of the company and of other persons. Absent such guarantees, the rights of the defence become illusory.

That judgment is complemented by the judgment of 30 April 2025 in C-278/24, Genzynski, in which the Court indicated that a board member must have a genuine opportunity to demonstrate that he exercised due diligence in conducting the company’s affairs, and that the grounds for exoneration may not be construed so narrowly as to become unattainable. The Court added, however, that a board member cannot discharge himself merely by pleading that, at the time the company’s permanent insolvency was established, the State Treasury was its sole creditor.

The third judgment, delivered on 16 July 2026 in the Luxembourg case C-158/25, QJ, completes the standard and strikes at the argument to which the Polish authorities resorted most readily: that a board member cannot contest the company’s assessment because he could have appealed against it on the company’s behalf while in office. The Court held that Article 47 of the Charter of Fundamental Rights precludes national rules which do not allow a managing person held liable for the company’s VAT to challenge, incidentally and in the proceedings on her own liability, the final assessment issued against the company, including its findings on the taxable amount and the amount of unpaid tax, in so far as those findings are relevant to her defence (paragraphs 55 and 66 and the operative part). The availability of that review cannot depend on whether the manager, within the scope of her powers, was in a position effectively to contest the assessment on the company’s behalf within the time limit for an appeal (paragraph 56): the rights of the defence are personal, and the interests of the company and of the natural person may diverge (paragraph 57). Such a person may also rely on an infringement of her fundamental rights committed in the proceedings against the company (paragraph 61), and access to the file may be restricted only after the court has weighed the competing interests of confidentiality (paragraphs 62 to 65). Two reservations were maintained: the manager need not be a party to the assessment proceedings (paragraph 52), and the acceptance of her objections does not alter the decision issued against the company (paragraph 59). The Court did not call into question the liability of managers as such: mechanisms of this kind serve the collection of VAT and are permissible (paragraphs 30 and 34, citing Case C-1/21). The dispute concerns the standard of the procedure, not the existence of the institution.

All three judgments arose in VAT cases, because it is only within that field that the national authorities implement Union law (Article 51 of the Charter). In the wake of the first two, the Minister of Finance and Economy issued, on 29 August 2025, general interpretation No. DTS2.8012.5.2025 providing interpretative guidance on the application of Article 116 of the Ordinance: it confirms the board member’s right of access to the file of the assessment proceedings and the right to challenge their findings, stipulates that an effective challenge neither sets aside the decision issued against the company nor justifies the reopening of those proceedings, and extends that standard to all taxes, not only VAT. In CIT, PIT or social security matters the standard therefore applies not by force of Union law but because the Minister adopted it, and objections should be built on that distinction. In constructing a defence it is advisable to invoke the interpretation alongside the judgments: to an official it is guidance from his own minister, rather than a judgment that must first be translated into domestic procedure. One passage of the interpretation has not, however, survived its confrontation with C-158/25. The interpretation makes the right to raise objections conditional on whether the board member previously had a genuine opportunity to raise them, and directs the authority to examine whether, by holding office during the assessment proceedings or by filing the return, he impliedly waived them. The Court held precisely the opposite: the right to defend oneself in one’s own case does not depend on what the manager could have done on the company’s behalf. Where an authority refuses to examine objections in reliance on that passage, the Court’s interpretation prevails, and the refusal is itself a self-standing ground of appeal.

Reopening Concluded Cases: The Deadline of 5 November 2026

The Adjak judgment was published in the Official Journal of the European Union on 22 April 2025, and the one-month time limit for requesting the reopening of proceedings on that ground (Article 240 § 1(11) and Article 241 § 2(2) of the Tax Ordinance) expired on 22 May 2025. That does not mean, however, that cases concluded by a final decision are closed. The operative part of the judgment in C-158/25 was published in the Official Journal on 5 October 2026 (C/2026/4943), which set a new one-month period running: a request for the reopening of tax proceedings concluded by a final decision must be filed by 5 November 2026. The condition is a showing that the judgment affects the content of the particular decision, that is that the authority based it on findings made against the company which the third party could not challenge, or denied her that right by reference to her earlier capacity to act on the company’s behalf. Reopening is not automatic, not every lost case qualifies, and the mere citation of a new case number will not suffice.

In cases concluded by a final and binding judgment of an administrative court, the available remedy is an application for the reopening of the court proceedings (Article 272 § 3 of the Law on Proceedings before Administrative Courts). The case-law of the Supreme Administrative Court accepts that a judgment of the Court of Justice delivered in another person’s case, even if not served on the applicant, may constitute such a ground (resolution of 16 October 2017, I FPS 1/17), with the three-month period counted from the publication of the operative part in the Official Journal, that is, in principle, until 5 January 2027. In pending proceedings, and wherever the decision has not yet become final, all three judgments furnish grounds for demanding access to the file of the assessment proceedings and for contesting, on the merits, the findings concerning the company’s arrears themselves.

Limitation: Three Questions Easily Confused

Two institutions of limitation, concerning two different things, are central to any defence against third-party liability, together with a third question which is best asked before either of them.

The first is the limitation of the right to issue a decision. Under Article 118 § 1 of the Ordinance, no decision on the tax liability of a third party may be issued once 5 years have elapsed from the end of the calendar year in which the tax arrears arose. That rule, however, has exceptions on which commentaries are usually silent: in the case of Article 117b § 1 the period is 3 years from the end of the year in which the supply of goods took place, and in the case of Article 117c likewise 3 years, counted from the end of the year in which the six-month period following the taxpayer’s registration as an active VAT taxpayer expires.

The second is the limitation of the obligation arising from the decision already issued. Under Article 118 § 2 it occurs after 3 years from the end of the calendar year in which the decision on liability was served; the provisions on the suspension and interruption of the limitation period (Article 70 § 2(1), § 3 and § 4) apply mutatis mutandis, save that after an interruption the period runs afresh and amounts to 3 years. Two clarifications are of practical moment. The provision does not concern the limitation of the tax obligation itself but of the obligation flowing from the liability decision, and these are two different things. The statute ties the running of the period to the service of the decision, not to its issuance; since the period is counted from the end of the calendar year, the distinction becomes decisive where issuance and service fall in different years, which happens regularly with decisions issued in December.

Irrespective of both periods, the third party’s liability is accessory in nature and therefore expires together with the principal debt. Hence the third question: whether the company’s own obligation still exists. If it has become time-barred under Article 70, liability for it can no longer be validly established. Since, after Adjak, the third party may contest the findings concerning the company’s arrears, she may also contest the effectiveness of any suspension of the limitation period of those arrears, for instance by criminal fiscal proceedings instituted solely in order to forestall limitation; the administrative courts examine that premise within their review of the decision (resolution of the Supreme Administrative Court of 24 May 2021, I FPS 1/21). Accessoriness does not mean, however, that the deletion of the company from the register closes the matter: a public-law debt does not perish with the company’s existence, and a decision on a board member’s liability may be issued after the company has been deleted (resolution of the Supreme Court of 15 October 2009, I UZP 3/09, concerning social security contributions).

The construct of the Tax Ordinance is not confined to taxes. The Act on the Social Insurance System (Article 31) directs that the provisions on third-party liability enumerated therein, including Articles 116 and 116a, apply mutatis mutandis to amounts due by way of contributions. The Social Insurance Institution (ZUS) accordingly rules on the transfer of liability to board members on the same premises: ineffective enforcement against the company, failure to file a bankruptcy petition in due time (or to have restructuring proceedings opened or an arrangement approved), failure to demonstrate the absence of fault, and failure to identify assets sufficient to satisfy the arrears in substantial part.

Two differences are fundamental and a frequent source of error. The first is procedural. A ZUS decision transferring liability is contested not by a complaint to the administrative court but by an appeal to a court of general jurisdiction, namely the regional court, labour and social insurance division, lodged within one month of service. The proceedings are civil in nature, with a different time limit, a different procedure and different rules of evidence from a tax dispute, even though the same substantive premises apply. The second concerns limitation: Article 31 of the Act refers to Article 118 § 1 of the Ordinance but not to its § 2, and the limitation of amounts arising from a decision on third-party liability is governed by Article 24(5d) of the Act. It occurs after 5 years from the end of the calendar year in which the decision was issued, not after 3 years from the end of the year of its service, as in tax matters.

Lines of Defence

The order in which objections are examined in cases of this kind is usually recurrent. One first verifies whether any of the situations enumerated in Articles 110 to 117e obtains; an authority acting outside that catalogue acts without legal basis, which opens the way to the declaration of invalidity of the decision (stwierdzenie nieważności), whereas a defective application of a provision within the catalogue is contested in the ordinary course of appeal. One then examines the time limits under Article 118, including the three-year exceptions and the date of service, as well as whether the company’s own debt has expired. One next verifies whether enforcement against the person primarily liable has in fact proved ineffective and whether this has been demonstrated rather than merely assumed, and whether the proceedings have encompassed all members of the board, since the authority is bound to conduct them against all persons who may bear liability (resolution of the Supreme Administrative Court of 9 March 2009, I FPS 4/08), and the omission of any of them hampers later recourse. Finally, one assesses the grounds for exoneration proper to the given category of third party.

After Adjak, Genzynski and C-158/25 a layer has been added to that list which did not previously exist in the practice of the authorities: a demand for access to the file of the assessment proceedings against the company and a challenge to the arrears themselves, not merely to the premises of one’s own liability. The objections must, however, be raised actively and specifically. Applying Adjak, the Supreme Administrative Court has held that the assessment decision issued against the company does not bind the authority in the board member’s case, but that its findings are examined upon objection (judgment of 22 August 2025, III FSK 4259/21); a person who raised no objection before the authority will not later obtain the setting aside of the decision by mere reference to the Court of Justice. In practice this means that proceedings on third-party liability must be conducted as a dispute over the assessment of tax, not as a formality that follows it, and that the choice between an appeal, a complaint to the administrative courts and an application for reopening should be made with the Union standard expressly in view.

Some provisions of this chapter are, moreover, so imprecise as to leave the authorities a wide margin of appreciation, while the stake is liability with one’s personal assets. The earlier a professional representative appears in the proceedings, the more objections remain available; once the decision becomes final, the room for manoeuvre contracts dramatically, and after 5 November 2026 the window opened by C-158/25 will close as well.