The Board Vanished, the Cassation Appeal Went With It: the Supreme Administrative Court on a Company Without a Management Board (I FSK 41/24)

By an order of 3 November 2026 (case no. I FSK 41/24) the Supreme Administrative Court (Naczelny Sąd Administracyjny, NSA) discontinued the cassation proceedings of a limited liability company which, after lodging its cassation appeal, was left without a management board, and for almost two years nobody cured that defect. The judgment of the Provincial Administrative Court in Warsaw dismissing the company’s complaint against a decision on VAT and the additional tax liability for the period from November 2020 to January 2021 became final without any cassation review, and the court fee paid for the appeal was forfeited. A company without a management board neither wins nor loses its case: it loses the case itself. The question why boards vanish has an answer less comfortable than calculation. A decision assessing VAT for a period years in the past reveals arrears which, for the purpose of judging whether the company is insolvent, count from the original payment date; once final, the decision opens the door to enforcement; and the board members are left with three doors: to stay and defend themselves against personal liability, to file for bankruptcy and hand the dispute to a trustee, or to resign and let the case die. Each of them leads into the same room: a dispute closed without full judicial review and a bill made out to the former board. With this problem the Polish legal system, for now, cannot cope at all, and this text is about that problem.

The cassation appeal of a company without a management board: what the Supreme Administrative Court held in I FSK 41/24

The chronology is simple, which is why it is instructive. The company’s cassation appeal against the judgment of the Provincial Administrative Court in Warsaw of 5 October 2023 (VIII SA/Wa 418/23) reached the Supreme Administrative Court on 8 January 2024. The dispute concerned VAT and the additional tax liability imposed under Article 112c(1)(2) of the VAT Act, that is the sanction provided for empty invoices, that is for invoices documenting transactions which never took place. On 15 November 2024 the company’s sole board member, a president authorised to represent it on his own, was struck off the register. From that day, according to the court’s findings, the company existed but could not act; the date of the entry itself does not determine when the mandate expired, of which more below. The Supreme Administrative Court noticed this of its own motion only on 19 May 2026, checking the printouts from the National Court Register (KRS) before taking up the case, and stayed the proceedings under Article 124 § 1(2) of the Law on Proceedings before Administrative Courts (p.p.s.a.); in its order staying the proceedings it recorded that neither a commercial proxy nor a curator authorised to act before the Supreme Administrative Court, or before the administrative courts at all, was acting for the company.

Eight days later the court called on the company’s attorney of record to fill the vacancy on the board or to have a curator appointed, and to submit a document proving that the defect had been cured, within three months, on pain of annulment of the proceedings and the issue of an “appropriate order”, one rejecting the cassation appeal or discontinuing the proceedings. Nobody collected the letter. The court treated it as served on 16 June 2026 by substitute service, the time limit expired on 16 September 2026, and the company gave no answer of any kind.

On 3 November 2026 the Supreme Administrative Court resumed the stayed proceedings, annulled the cassation proceedings and discontinued them as moot (Article 161 § 1(3) in conjunction with Article 31 § 3 and Article 128 § 1 p.p.s.a.). The reasoning confines the annulment to the period after 15 November 2024 and expressly notes that the cassation appeal had been validly lodged, so there was no basis for rejecting it; the proceedings simply could not be continued. The court did not refund the fee, because Article 232 § 1(1) p.p.s.a. provides for a refund where a pleading is rejected or withdrawn, not where proceedings are discontinued on this ground. It should be noted, however, that in case I FSK 98/24, discontinued on 2 June 2026 on the same basis of Article 161 § 1(3), the Supreme Administrative Court refunded the authority’s fee for its cassation appeal, citing precisely Article 232 § 1(1); the same provision served once to refund and once to refuse, and nobody has explained the difference. The effect of the discontinuance is the same as that of discontinuing stayed proceedings before the Supreme Administrative Court: the first-instance judgment became final, and the final and enforceable decision of the Head of the Mazovian Customs and Tax Office in Warsaw remained in force together with the sanction.

One detail says more than the rest of the file. The summons went to the attorney who had lodged the cassation appeal, which as a rule means an advocate, an attorney at law or a tax adviser, because only they may draw one up (we describe the requirements of this remedy in the text Cassation Appeals to the Supreme Administrative Court of Poland). Nobody collected the letter from the Supreme Administrative Court. We do not know why. We do know that the court did not wait for an explanation, because the law allows it not to.

A company without a management board before the administrative courts: three provisions and one gap

A legal person acts before an administrative court through its governing bodies (Article 28 § 1 p.p.s.a.). When there is no board, the court stays the proceedings of its own motion (Article 124 § 1(2)), because to run a case with a party deprived of its governing body would risk the nullity of the proceedings (Article 183 § 2(2)). A vacancy in a governing body is, however, a curable defect, so the court sets an “appropriate time limit” for curing it, and when that limit passes without result it “shall annul the proceedings to the extent affected by the defects and, where necessary, issue an appropriate order” (Article 31 § 1 and § 3). That is as much as the provisions say expressly.

What they do not say is two things. First, the p.p.s.a. gives an administrative court no general power to appoint a curator of its own motion for a legal person without a governing body, such as a civil court has under Article 69 § 1 of the Code of Civil Procedure. Article 30 § 1 allows a curator to be appointed for a party without a governing body only at the request of the opposing party and only where that party is taking an urgent step against it. In a case in which it is the company that challenges the authority, the opposing party has no procedural reason to ask for a curator; discontinuance is the best outcome it could hope for. The Supreme Administrative Court said as much a decade ago: the statute confers no power to appoint a curator for a party outside Article 30, and even then only for urgent steps (order of 2 December 2015, II FSK 2968/15, given in the case of a natural person, but with a general thesis). Second, Article 130 § 1 p.p.s.a. lists when a court discontinues stayed proceedings: after three years of inactivity where the stay was granted at the joint request of the parties or because the case could not proceed, where a party which has lost its capacity to be a party has no legal successor, and five years after a stay caused by a party’s death. On a stay caused by the absence of a governing body the provision is silent. The legislature set a clock for cases of deceased parties and of entities that have ceased to exist, not for companies that have lost their board.

The Financial Chamber of the Supreme Administrative Court fills this gap with a construction older than one might think. Its beginnings can be seen in the case closed by the judgment of 3 December 2013 (II FSK 3149/12): the sole board member resigned, the attorney himself moved for a stay, the court stayed the proceedings in November 2010, in April 2012 it set a thirty-day limit for filling the board, and by an order of 23 August 2012 (II FSK 466/10) it annulled the cassation proceedings from the day the company lost its capacity to act and discontinued them. The order of 17 October 2024 (I FSK 974/18) already looks like the template for case I FSK 41/24: a stay because the board was unfilled, a summons to fill the vacancy or have a curator appointed within three months, no answer, resumption, annulment and discontinuance. In case I FSK 2322/21 the same sequence was set in motion by an order of 24 January 2024, only with a limit of one month. Case I FSK 1637/20 has the same operative part: by an order of 21 March 2025 the court annulled the cassation proceedings conducted since 25 October 2023 and discontinued them, which is known from the rectifying order of 9 May 2025. All of these cases concerned taxes; I FSK 974/18, I FSK 1637/20 and I FSK 41/24 concerned VAT, and the last two concerned decisions of heads of customs and tax offices. The definition of an “obstacle of a permanent nature”, on which discontinuance under Article 161 § 1(3) hangs, the Financial Chamber borrowed from the judgment of 2 October 2019 (II OSK 2729/17), where it had been formulated for a company struck off the register after completed bankruptcy proceedings, that is for an entity that had ceased to exist. The permanence of the obstacle is thus measured by the expiry of a court-set time limit: thirty days in 2012, a month in January 2024, three months from May 2024. Once it expires, a curable defect becomes, in the court’s eyes, a permanent one, even though the definition of permanence was written for a defect that cannot be cured at all.

In the General Administrative Chamber the same permanence was measured differently. In case III OSK 2234/21 the Supreme Administrative Court stayed the cassation proceedings of a company without a board on 18 November 2022; nothing in the reasoning suggests that it called on anyone to do anything, and on 19 February 2026, after three years had passed since the stay, it discontinued them under Article 130 § 1(2) p.p.s.a., that is a provision which literally concerns a party that has lost its capacity to be a party and has no legal successor. A company without a board does not lose that capacity, so the provision was applied outside its literal scope, with no explanation of why a rule about an entity that has ceased to exist should cover an entity that exists. In the compared rulings of one and the same court there are therefore two clocks for the same obstacle: three months from the summons and three years from the stay. The difference comes not from the statute but from which provision a given bench finds closer, and it is hard to think of better proof that the statute does not regulate this situation.

This situation should be distinguished from that of companies struck off the register. When a company ceases to exist, the Supreme Administrative Court discontinues the cassation proceedings for want of a legal successor, and it does so even where the cassation appeal was lodged by the authority, as in the orders of 27 March 2026 (I FSK 757/23) and of 2 June 2026 (I FSK 98/24); in both cases the first-instance judgment setting aside the authority’s ruling became final. There the mootness is natural: there is no longer an entity whose case could be decided. A company without a board exists, has assets, liabilities and a case still awaiting decision. Its obstacle is curable by definition; the court itself classifies it so, since it sets a time limit for curing it. Curability turns into permanence not through an event but through the passage of time, the measure of which is set by a judge, not by the statute.

Here lies the strongest objection to this line of case law, and it is not worth softening. A stay of proceedings is a protective institution: it protects a party that cannot act from a ruling given behind its back. Article 31 § 3 allows the court to annul the steps affected by the defect, that is to treat them as not having taken place, and “where necessary” to issue an appropriate order. It does not prescribe that this order must be the discontinuance of the whole case, least of all a case validly commenced while the company still had a board. The passage from “the proceedings cannot continue” to “there is no longer anything to decide” calls for separate reasoning, and in both orders the Supreme Administrative Court replaces it with a sentence that the lack of representation makes continuation impossible. In I FSK 41/24 the court itself cited, after the commentary by Hauser and Wierzbowski, that the “appropriate order” after annulment may be the rejection of the complaint, discontinuance or a stay of the proceedings, and chose discontinuance without a word on why not a stay. The objection is not new: in case II FSK 3149/12 the appellant argued in terms that Article 130 § 1 contains a closed list of grounds for discontinuing stayed proceedings, and that where there is no governing body the proceedings should remain stayed; the Supreme Administrative Court did not engage: it stated that after annulment “there arises a need” for discontinuance, without explaining where that need comes from. Added to this is the question of time limits: under Article 127 § 2 p.p.s.a. no time limits run while proceedings are stayed, and § 3 permits only steps aimed at resuming the proceedings or at staying the enforcement of the act. A summons to restore representation falls within that category, but a time limit whose expiry ends the case is something more than a step preparing resumption. The Supreme Administrative Court does not explain this relation. The same goes for Article 128 § 1, which requires stayed proceedings to be resumed when the cause of the stay has ceased: in cases I FSK 974/18 and I FSK 41/24 the court resumed them although the cause persisted, and did so solely in order to discontinue them. Finally, the operative part in I FSK 41/24 reads “annul the cassation proceedings” without stating the scope, even though the reasoning confines the annulment to the period after 15 November 2024; in cases I FSK 974/18 and I FSK 1637/20, and earlier in order II FSK 466/10, the court was more precise and stated in the operative part the date from which it annulled the proceedings. The Supreme Administrative Court also took the day the president was struck off the register as the start of the defect, although the entry of a board member is declaratory and the mandate expires upon the event, not upon the entry, as the Supreme Court recalled in its order of 18 January 2012 (II CZ 144/11). For the outcome of the case this is immaterial; for the scope of the annulment not necessarily.

The case concerns VAT, and therefore the implementation of EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights, as the Court of Justice settled in Åkerberg Fransson (C-617/10). The standard of effective judicial protection under Article 47 of the Charter, with the proportionality test known from DEB (C-279/09), therefore also covers the mechanism by which a national court closes cassation review. This does not mean that the Court of Justice has prohibited such discontinuances; the judgments cited do not concern an identical configuration. It means that a court closing a VAT case should be able to show that it reached for the least onerous of the available measures. In I FSK 41/24 there is no such showing, because the court considered no intermediate route between summoning the attorney and discontinuance. This is a hypothesis for use in a future case, not a thesis about the outcome, but a hypothesis worth putting before a court when a company with a board and an attorney finds itself in the same procedure.

The defender of this line of case law has, however, an argument that must be taken seriously. The State need not keep in train indefinitely the case of an entity that nobody wants to represent. The company’s shareholders had not three months but almost two years to appoint a board, and did nothing. If the p.p.s.a. gives the court neither a curator of its own motion nor a statutory discontinuance deadline, then the alternative to the Supreme Administrative Court’s construction is an indefinite stay, and an indefinite stay of a tax case in which the decision is enforceable and the first-instance judgment dismissed the complaint serves nobody. The criticism should therefore strike not at the requirement of representation itself, but at the fact that the statute left the court a choice between two bad options.

What the attorney of record cannot do, even though the court writes to him

The summons went to the attorney, and rightly so. Loss of the board is not loss of the capacity to be a party, so the power of attorney does not lapse: Article 43 p.p.s.a. ties its expiry to the death of the party or its loss of capacity to be a party, and the Supreme Court, in its order of 2 June 2010 (II PZ 15/10), explained on the basis of the twin Article 96 of the Code of Civil Procedure that a subsequent absence of a governing body does not cause loss of the capacity to be a party and does not extinguish a power of attorney for litigation; at the same time it recalled that a company without a governing body cannot express its will or take procedural steps even when it has a duly appointed attorney established before the loss of the body. The Supreme Administrative Court says the same: later changes in the composition of the board do not automatically extinguish a properly granted power of attorney (judgment of 26 August 2020, I GSK 324/18), but a company that has an attorney and no governing body still cannot act, so the proceedings must be stayed (judgment of 14 October 2014, II GSK 750/13). Letters are served on the attorney (Article 67 § 5 p.p.s.a.). The court therefore treated the summons as served, and an uncollected letter is, in the eyes of the law, a letter served.

Except that the attorney is not a governing body. The Supreme Court consistently holds that the absence of a body appointed to represent a party renders the proceedings null regardless of whether an attorney acted on its behalf (order of 20 August 2020, III UZ 16/20); in that case, as the Supreme Court noted, the company’s attorney, too, had failed to inform the court that the board had been lost. The attorney will not appoint a board, because that is the shareholders’ competence (Article 201 § 4 of the Commercial Companies Code), and will not have a curator appointed, because that is done by the registry court (Article 42 of the Civil Code, Article 603 of the Code of Civil Procedure). His power of attorney covers steps connected with the administrative court case (Articles 36 and 39 p.p.s.a.), not registry proceedings. A summons to fill the vacancy on the board addressed to the attorney is therefore in substance a summons to pass a message to people whom the court does not know and whom it is unable to summon itself.

What can the attorney do? Notify the shareholders in writing and keep proof of it. Notify the registry court, which since the amendment in force from 15 March 2018 may call on those obliged to appoint a governing body to do so on pain of a fine (Article 24(1a) and (1b) of the Act on the National Court Register) and may open of its own motion proceedings to appoint a curator where an important public interest or the security of trade so requires and a governing body cannot be appointed (Article 603 § 2 of the Code of Civil Procedure). Apply to the Supreme Administrative Court for an extension of the time limit for an important reason, necessarily before it expires (Article 84 p.p.s.a.), and document that registry proceedings are under way. Finally, when contact with the client has been lost for good, terminate the power of attorney instead of staying silent; a professional attorney must continue to act for a further two weeks after termination (Article 42 § 2 p.p.s.a.), but is not answerable for the fact that nobody wants to run the company. In case I FSK 41/24 none of these things reached the court. That is why criticism built on the attorney’s helplessness would be too easy: the sanction fell on a company on whose behalf nobody spoke to the court for two years.

The systemic problem begins where the shareholders exist and want to act, but three months are not enough. The time limit under Article 31 § 1 is to be “appropriate”. When the shareholders are reachable and agreed, three months is a lot: in case I FSK 553/22 the Supreme Administrative Court stayed the proceedings on 15 May 2025, an extraordinary general meeting appointed a president on 5 August, the registry court entered him on 29 August, on 24 September 2025 the proceedings were resumed, and on 3 March 2026 the Supreme Administrative Court heard the cassation appeal (in a dispute over the stay of tax proceedings) and dismissed it. The company lost, but it lost in court, not through an empty chair. When shareholders have to be traced, a corporate dispute has to be resolved or a curator has to be waited for, three months may be enough for nobody. The court should then distinguish between a duty to act and a duty to achieve a result: require the party to show that it has set the available remedial route in motion, and extend the time limit as long as that route is real. The stay can then be maintained without fear of abuse, because the abuse lies in inaction, not in the slowness of the registry court.

A separate trouble begins when the company has a curator, but not the right one. A curator appointed at the request of the tax authority under Article 138 § 3 of the Tax Ordinance (Ordynacja podatkowa) acts within the limits of the registry court’s certificate, and those usually cover tax proceedings, not court proceedings. On 6 June 2023 the Provincial Administrative Court in Gorzów Wielkopolski rejected a cassation appeal lodged by such a curator, an attorney at law, because successive orders of the registry court had authorised him to conduct the appeal and enforcement proceedings, not to appear before the administrative courts (I SA/Go 33/23); the curatorship there had been established for a year and extended twice. The court added that a curator under Article 30 p.p.s.a. could be requested only by the authority as the opposing party, not by the company’s curator, and recalled that in other cases the same curator had appeared before the Supreme Administrative Court only because he had produced orders extending his authority to administrative court proceedings. Court proceedings are not a continuation of tax proceedings, so a curatorship from the tax stage ends at the courthouse door unless the registry court extends it expressly to administrative court proceedings. Where the scope is right, a curator can carry a case through to judgment: that is what happened in the case we describe in Company Without a Management Board: Who Gets the VAT Bill, where the curator of a company without a board obtained the setting aside of a VAT decision.

What happens behind that door depends on the moment at which the defect arose. When the company already has no governing body on the day the complaint is lodged, the court calls for the defect to be cured and, after the time limit passes without result, rejects the complaint (Article 58 § 1(5) p.p.s.a.); a stay under Article 124 § 1(2) is for a defect that arose later (orders of the Supreme Administrative Court of 30 September 2014, I FZ 315/14, and of 1 April 2011, II OZ 226/11). On 7 January 2026 the Provincial Administrative Court in Bydgoszcz showed what the first variant looks like with a curator in the background: a curator, an advocate appointed for a year at the request of the head of a tax office for tax matters and to convene a general meeting to appoint a liquidator, lodged a complaint in July 2025 for which she had no authority, because the certificate did not cover court proceedings; in September the curatorship expired altogether; the court called for a person authorised to act for the company to be entered in the National Court Register within two months, and then rejected the complaint, adding that, since the proceedings had not been validly commenced, there was no basis to apply to the registry court for a curator, that it could not appoint one of its own motion, and that it could not order anyone to file an application (I SA/Bd 436/25). The court thus described, itself, what it lacks. For the record: a curator from the registry court does not even enjoy the exemption from court fees that Article 239 § 1(3) p.p.s.a. gives to curators appointed for a given case by the trial court or a guardianship court (order of the Supreme Administrative Court of 25 June 2020, II GZ 150/20).

Tactical resignation of the board: when the empty chair is a strategy

The other side of the same problem is less sympathetic. A company without a board is sometimes not a victim but an instrument. In VAT disputes, especially those in which the authority alleges participation in a carousel or sham invoices and imposes the additional tax liability, the life of a company often ends with the resignation of the last board member. The nominee director walks away, the shareholders become unreachable, and the registered address leads to a mailbox in a virtual office. The authority has to serve the decision, so it applies to the court for a curator, as Article 138 § 3 of the Tax Ordinance obliges it to, and waits, and meanwhile the limitation period runs (Statute of Limitations for Tax Obligations). That is the real dividend of a vanished board; we write about the mechanics of this stage, and about the bill that ultimately lands with the former board, in Third-Party Tax Liability in Poland: Articles 110 to 117e of the Tax Ordinance and Personal Liability of Directors for Tax Obligations Under Polish Law.

At the court stage the dividend is smaller, because lodging a complaint with an administrative court suspends the running of the limitation period until the authority is served with the final judgment (Article 70 § 6(2) and § 7(2) of the Tax Ordinance). A vanished board buys time here, not impunity. It does have value in one configuration: when it was the authority that lodged a cassation appeal against a judgment favourable to the company, and the company meanwhile lost its board. The proceedings must be stayed, and annulment and discontinuance on account of someone else’s defect would strike at a party that cannot cure that defect; Article 31 § 3 does not expressly exclude it, but no court known to us has applied it that way. The authority may ask for a curator under Article 30 p.p.s.a. or apply to the registry court, but each of those routes costs months. Case I FSK 288/20 shows how this looks in practice: the cassation appeal against a judgment setting aside a decision was lodged by the Director of the Tax Administration Chamber, by an order of 26 March 2024 the Supreme Administrative Court stayed the proceedings because the company had no board, and on 13 November 2025 it heard the authority’s appeal on the merits and dismissed it; the company did not even file a reply to the cassation appeal. The court waited and decided, and there was no talk of discontinuing the authority’s appeal because of someone else’s defect. How the company’s representation was restored does not appear from the judgment. If, on the other hand, one adopts the model from case III OSK 2234/21, after three years of stay discontinuance follows regardless of whose side the defect lies on, and then the judgment favourable to the company becomes final. That is the only configuration in which a vanished board at the court stage yields anything more than time, and the only one in which the authority has to see to a curator itself, because nobody will do it for it. The test of reversed roles shows that the Financial Chamber’s construction works solely against the party whose defect it is, and for that reason it is not a tool against tactical resignation. It is a housekeeping tool for abandoned cases.

Against sham resignations the system is, moreover, not defenceless. The Supreme Administrative Court has held that an administrative court may examine the effectiveness of acts of civil law where they translate into procedural rights, especially where the resignation from a management function bears the marks of a sham and serves to abuse the institution of the stay in conflict with the right to a court and the rule of law (judgment of 21 February 2023, III FSK 1059/22); that a party’s activity calculated to delay the case as long as possible is an abuse of the right to a court, and that Articles 2 and 45(1) of the Constitution may be applied jointly with Article 124 § 1(2) p.p.s.a. and Article 83 § 1 of the Civil Code (judgment of 7 September 2023, I GSK 2076/19); and that from Article 2 of the Constitution and Article 124 § 1(1) and (2) a norm prohibiting abuse of the right to a stay can be derived (judgment of 3 March 2026, III OSK 1288/25). A resignation on paper, after which the former president goes on running the company, may fail to stay the case; whether it is a sham is decided by the circumstances, not by the mere fact of continued activity. The tool is missing elsewhere: against a genuine resignation, after which nobody runs the company.

The legislature has for years been adding tools against vanishing boards, only not in the p.p.s.a. Since 1 March 2019 the last board member of a limited liability company cannot simply walk away: he submits his resignation to the shareholders, at the same time convening a general meeting, and the resignation takes effect only on the day after the date for which the meeting was convened, unless the articles of association provide otherwise (Article 202 § 6 of the Commercial Companies Code). Since 15 March 2018 the registry court may, in justified cases, call on the shareholders to appoint a board on pain of a fine, which as a rule reaches PLN 15,000 per fine and PLN 1,000,000 in total, and may dissolve the company without liquidation when compulsion proceedings hold no promise (Articles 24 and 25a of the Act on the National Court Register). Since the same amendment the curator under Article 42 of the Civil Code not only works towards the appointment of governing bodies but represents the legal person and conducts its affairs within the limits of the court’s certificate. Civil procedure has gone further still: a court may, in the course of a case, appoint a curator for a legal person of its own motion (Article 69 § 1 of the Code of Civil Procedure), the appointment of a curator excludes a stay (Article 174 § 1(2)), and proceedings stayed for want of a governing body are discontinued only after two years, while discontinuance at first instance does not strip the statement of claim of its effects (Article 182 § 1(4) and § 2 of the Code of Civil Procedure). Even the Tax Ordinance has a temporary special representative, whom the tax authority appoints for a legal person without governing bodies until a curator is appointed by the court (Article 138m).

Against this background the Law on Proceedings before Administrative Courts is the poorest: no curator of the court’s own motion, no statutory clock, and no express basis for discontinuance. A court that wants neither to stay indefinitely nor to rule in the face of nullity improvises. I FSK 41/24 is a consistent improvisation, but an improvisation.

Why boards vanish: the trap of the three doors

Resigning from a board in the middle of a tax dispute need not be calculation. More often than one might think, it is an escape from a building in which the law has locked every exit but one. To see this, one has to set side by side three statutes that know nothing of one another: the Tax Ordinance, the Bankruptcy Law and the Commercial Companies Code.

Let us start with the date. A VAT liability arises by operation of law at the moment of the taxable event, and an assessment decision merely states its amount (Article 21 § 1(1) and § 3 of the Tax Ordinance). Tax for a period long past was therefore due on a payment date years ago, even if the authority calculated it only years later and the cassation court was to deal with it later still. The Bankruptcy Law knows no such subtleties: a debtor is insolvent when it has lost the ability to meet its due monetary obligations, and a delay of more than three months creates a presumption of that loss (Article 11(1) and (1a) of the Bankruptcy Law). A bankruptcy petition must be filed within thirty days of the day on which the ground arose, and that duty rests on everyone who, by statute, articles of association or charter, has the right to conduct the company’s affairs and represent it (Article 21(1) and (2) of the Bankruptcy Law). The decision does not create the insolvency, but it reveals arrears which, when insolvency is assessed, count from the original payment date, and at the sums typical of sham-invoice cases the presumption of Article 11(1a) operates retroactively almost automatically; the general interpretation of the Minister of Finance and Economy of 29 August 2025 on Article 116 (no. DTS2.8012.5.2025), repeating the resolution of the Supreme Administrative Court of 10 August 2009 (II FPS 3/09), requires such historical liabilities to be taken into account when assessing the proper time for the petition. A decision from years back therefore works like a date stamp set backwards: on the day it is served the company learns that it may have been insolvent for years, and that the time for a bankruptcy petition expired before anyone knew of the debt. The exception was the pandemic years, when Article 15zzra of the so-called COVID Act interrupted the running of that period where insolvency was connected with COVID-19, which in case I FSK 41/24, concerning the turn of 2020 and 2021, may have mattered. The sanction under Article 112c, unlike the tax itself, arises only upon service of the decision imposing it (Article 21 § 1(2) of the Tax Ordinance), but that is small comfort, because it is added to arrears that already existed.

The second date is finality. A decision that is not final is not enforceable unless it has been given an immediate enforceability clause, while a final decision is enforceable by operation of law (Articles 239a and 239e of the Tax Ordinance); a complaint to an administrative court does not of itself stay it (Article 61 § 1 p.p.s.a.), and the court may stay it on application (Article 61 § 3) only exceptionally, where there is a risk of serious damage or effects difficult to reverse, which the seizure of the accounts of a company accused of sham invoices rarely passes for. In sham-invoice cases the authority often does not even wait for the decision but secures performance against the company’s assets as soon as it has a justified fear that the tax will not be paid (Article 33 of the Tax Ordinance). Finality comes quickly: in case I FSK 41/24 the appeal was still heard by the same head of the customs and tax office (Article 221a of the Tax Ordinance, repealed with effect from 1 July 2023), whereas today it is heard by the Director of the Tax Administration Chamber (Article 220 of the Tax Ordinance), which adds months, not years. From that moment the company is no longer insolvent merely on paper. The seizure of its accounts takes away its liquidity, its counterparties stop receiving transfers, and each of them who fails to enforce its claim against the company gains a title to reach for the board members’ assets (Article 299 of the Commercial Companies Code). The tax authorities have their own track in Article 116 of the Tax Ordinance, and the prosecutor a third in Article 586 of the Commercial Companies Code, which punishes the failure to file for bankruptcy in time.

What does a sensible board member do in this situation? The law tells him: file for bankruptcy. He does, and runs into two thresholds. First, a petition filed after the decision has been served is as a rule not a petition filed “in proper time”, since the insolvency dates from years earlier; the case law on Article 116 judges that time by the liabilities that existed objectively, not by what the board knew of them, and the board’s knowledge returns only when fault is assessed, which after the judgments of the Court of Justice in Adjak and Genzyński (C-277/24 and C-278/24) and that general interpretation must be examined in substance, not as a formality. Second, upon the declaration of bankruptcy the company’s property matters pass to the trustee, and court and administrative court proceedings concerning the bankruptcy estate are conducted exclusively by the trustee (Article 144 of the Bankruptcy Law). The trustee has a duty of diligence and of making optimal use of the assets (Article 179 of the Bankruptcy Law), but he is the administrator of someone else’s property, accountable for speed and costs, not for victories before the Supreme Administrative Court. A long, complicated dispute with the tax authorities, which are often at the same time the estate’s main creditor, has no natural place in his calculation and, in our experience, often fades away, though it need not: in case II OSK 2729/17 it was the trustee who carried the dispute all the way to the Supreme Administrative Court. The fourth door, restructuring, relieves from liability only if the proceedings were opened or the arrangement approved within the same period that ran for the bankruptcy petition (Article 21(3) of the Bankruptcy Law, Article 116 § 1(1)(a) of the Tax Ordinance), and on top of that it requires assets and time, which a company whose accounts have been seized usually no longer has. And if the assets do not even cover the costs of the proceedings, the court dismisses the petition (Article 13 of the Bankruptcy Law), and the registry court may dissolve the company without liquidation (Article 25a of the Act on the National Court Register); a company struck off loses its capacity to be a party and its case becomes moot in the most literal sense, as in cases I FSK 757/23 and I FSK 98/24.

The third door is resignation. A board member who does not want to add further months to his own liability submits his resignation to the shareholders, convenes a general meeting and, when nobody wants to take his place, leaves (Article 202 § 6 of the Commercial Companies Code). The company is left without a governing body and the mechanism of I FSK 41/24 kicks in: stay, summons, three months, discontinuance. The case that was about whether the decision was correct ends with the answer of the first-instance court, without cassation review.

Three doors, one room. To stay means to watch one’s own exposure under Article 116 of the Tax Ordinance and Article 299 of the Commercial Companies Code grow, to defend oneself with the defences of proper time and absence of fault, and to have no influence over the case, because enforcement goes on regardless. To file for bankruptcy means handing the dispute to someone who will not conduct it. To resign means killing the case with one’s own hand. In every variant the decision survives without full judicial review, at best with a first-instance judgment that nobody will verify, and the bill under Article 116 of the Tax Ordinance goes to the former board, which after the Adjak judgment may contest the authority’s findings in its own proceedings, but within limits that the general interpretation draws narrowly for anyone who sat on the board during the assessment proceedings, and then only in its own name, later, longer and at greater cost. The system has built a decision so painful that it pushes out of the company everyone who could have it reviewed, and then treats their departure as abandonment of the case. This is not a gap in one provision. It is three statutes, each internally coherent, none of which knows what the others are doing.

How to balance the instruments: four principles

First principle: summon those who can act. An administrative court should address the summons to the company through its attorney, because that is what the statute requires, but at the same time notify the registry court, which has tools against the shareholders and may appoint a curator of its own motion. The summons should distinguish what the court demands: information, the launching of a procedure, or proof of a result. A limit of three months is sufficient when the shareholders want to act, and should be extended when the party shows that the remedial route is under way. De lege ferenda, the p.p.s.a. should receive a provision modelled on the second sentence of Article 69 § 1 of the Code of Civil Procedure: in justified cases the administrative court appoints a curator for a legal person of its own motion and notifies the registry court. In cases in which the public interest requires a decision, if only because the cassation appeal was lodged by the authority, a curator appointed by the court is cheaper than years of stay.

Second principle: a hard statutory clock. The discontinuance of proceedings stayed for want of a governing body should follow from the statute, not from a time limit set in an order or from analogy. The model exists in Article 182 § 1(4) of the Code of Civil Procedure: two years from the stay. The Supreme Administrative Court itself has set thirty days, sets three months in one chamber and waits three years in another. In administrative court proceedings, where final and enforceable decisions are at stake, a year counted from the stay would be justified; that is a legislative choice, not a conclusion from the case law, but a year is enough for anyone who wants to act and tempts nobody to play for time. The effect of discontinuance before the Supreme Administrative Court, namely that the first-instance judgment becomes final, is already in Article 130 § 2 p.p.s.a.; only the premise is missing. A statutory clock deprives tactical resignation of its point, because nobody gains time without end, and at the same time relieves the judge of the burden of deciding how many months make an “appropriate time limit”.

Third principle: the sanction hits the right person. When the applicant abandons the case, the applicant loses it; so the Supreme Administrative Court held, and as to that rule there is little to argue about. When the opposing party loses its board, the case must not be ended to the detriment of the party that cannot appoint the board of someone else’s company; the court is to wait, and the cost of the curatorship should ultimately fall on the company and on those who abandoned it. The person who resigned from the board in the middle of a tax dispute must, in turn, be told plainly what he is risking. The decision against the company remains in force without cassation review, and it is on that basis that the authority will rule on the former board member’s liability under Article 116 of the Tax Ordinance. After the judgment of the Court of Justice of 27 February 2025 in Adjak (C-277/24) and the general interpretation of 29 August 2025 the former board member may contest, in his own proceedings, the findings made against the company, but that is a longer and more expensive road than keeping the company procedurally alive. Whoever leaves the board does not close the case; he transfers it onto himself.

Fourth principle, the most important: the case must outlive the board. Judicial review of a decision that pushes the board out of the company cannot depend on whether the board stayed in the company. Three steps, each of a different status. The first fits within the law already in force, although, as far as we know, nobody has tested it: a former board member who will answer for the company’s tax should be able to apply to the registry court for a curator under Article 42 of the Civil Code with authority for administrative court proceedings and undertake to cover the costs of the curatorship, and the administrative court should wait for such an application. Whether a former board member is an interested person within the meaning of the provisions on curators (Article 510 § 1 of the Code of Civil Procedure), the case law known to us has not settled; his own liability is a legal interest, so the argument is a serious one and worth putting. The second step is a proposal of interpretation: the same interest justifies admitting the former board member to the company’s case as a participant (Article 33 § 2 p.p.s.a.). The administrative courts have so far, as a rule, refused him that status, and the Adjak judgment does not change this: the Court of Justice allowed him to be denied the status of a party in the company’s proceedings, provided that in his own proceedings he can genuinely contest the authority’s findings. Participation in the company’s case is therefore a step further, which must be justified separately, but the judgment’s logic, that someone must be able to defend himself, argues for his defending himself earlier rather than later. The third step is legislative. The Bankruptcy Law requires the permission of the creditors’ committee, or of the judge-commissioner where there is none, for the acknowledgment of, waiver of or settlement of disputed claims (Article 206(1)(6) and Article 213(1)), but the withdrawal of a cassation appeal against a tax decision, or the failure to pursue it, is not named there; it suffices to bring them under the same requirement. And one sentence in the p.p.s.a.: a stay for want of a governing body does not lead to discontinuance as long as proceedings for the appointment of a curator are pending, the costs of which have been secured by a person liable for the obligation that is the subject of the case; the one-year clock from the second principle sets the upper limit anyway.

What this means in practice

For shareholders and boards of companies in a tax dispute the conclusion is one: do not leave the company without a person authorised to act, not even for a week. The simplest safeguard is a sole commercial proxy (prokurent samoistny) appointed before the dispute reaches the court. A commercial proxy (prokura) covers court acts (Article 109¹ of the Civil Code) and does not lapse when the board is dismissed or resigns, so according to the Supreme Administrative Court a company with a sole commercial proxy has no defects preventing it from acting and its cases are not stayed, within the limits of the proxy and of the particular case (order of 17 May 2016, II OZ 475/16); in case I FSK 41/24 the court checked the National Court Register for precisely this and found no proxy. A commercial proxy does, however, lapse upon the declaration of bankruptcy (Article 109⁷ § 2 of the Civil Code), so it secures the door of resignation, not the door of bankruptcy. The resignation of the last board member requires a general meeting to be convened, and the meeting may appoint a successor, if only a temporary one, the same day. Whoever leaves for good and leaves nobody behind should at least apply to the registry court himself for a curator for the company with authority for administrative court proceedings; there is no guarantee that the court will treat him as an interested person, but it is a move that may keep the case alive when there are no others left. The Supreme Administrative Court checks the register of its own motion and does not ask about reasons; because the entry is declaratory, the court should be given the resolution on appointment and the statement of acceptance of office at once, without waiting for the entry.

For attorneys: check the client’s entries in the National Court Register during the case, because the court will check them before it takes the case up. Answer every summons in writing, if only with information about the steps taken and an application for an extension. When the company is represented by a curator appointed at the request of the tax authority, make sure that the registry court’s certificate covers proceedings before the administrative courts; a curatorship limited to tax proceedings does not reach the Supreme Administrative Court (I SA/Go 33/23), and a curator is as a rule appointed for one year (Article 42¹ of the Civil Code), so the appointment may expire before the case comes up. Silence is the worst of all answers, because the court reads it as abandonment of the case.

For a company that has regained its board after discontinuance the road is, in practice, closed. The Supreme Administrative Court has been through this in case II FSK 3149/12: the shareholders appointed a board eighteen days after the discontinuance, the company filed an application to reopen the proceedings under Article 271(2) p.p.s.a., and the court dismissed it by its judgment of 3 December 2013, holding that, since Article 31 had been applied, there could be no question of the party having been deprived of the ability to act through a breach of the law. The Supreme Court reasons similarly on the basis of the twin Article 401(2) of the Code of Civil Procedure: a ground for reopening can be only such a lack of proper representation as the party could not have raised with due diligence and which had not ceased before the ruling became final (order of 18 January 2012, II CZ 144/11). Whoever wants to save the case must do so before the discontinuance, not after.

Summary

Order I FSK 41/24 is not an accident at work but a link in a line of case law which has lasted in the Financial Chamber for over a decade and answers a real problem of abandoned companies. Its weakness is that a provision on curing defects has been turned into a mechanism for closing cases, and the burden of the summons has been placed on an attorney who cannot cure the defect. Its strength is that no reasonable person wants a court in which the cases of abandoned companies hang for years. The real problem, however, lies one floor up. A tax decision for a period years in the past reveals arrears from which the company’s insolvency is counted, its finality sets enforcement in motion, and the law leaves the board three doors, each of which leads to a dispute closed without full judicial review and to a bill under Article 116 of the Tax Ordinance. The system pushes out of the company those who could have the decision reviewed, and punishes them for leaving. Until the p.p.s.a. gets a curator of the court’s own motion and a statutory discontinuance deadline, and until the person who will pay the tax gains the right to keep the case alive, a company without a board will remain, before the administrative courts, a party on credit, and that credit expires after three months.

Kancelaria Prawna Skarbiec conducts tax disputes for companies at every stage, from audit to cassation appeal, and advises shareholders and board members on how to secure the company’s representation in the course of a dispute. If your company has lost its board, or may lose it in the course of proceedings, we invite you to contact us before the next letter from the court, not after it.

Robert Nogacki

Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.

The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.

Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.

He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.

Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.

Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.

He believes that the best legal advice is the kind that means the client never has to appear in court.