The legal underpinning for the subsidiary liability of directors regarding a company’s debts
Chapter 3
The legal underpinning for the subsidiary liability of directors regarding a company’s debts.
3.1 Civil responsibility for commercial debts
In accordance with Article 299 CCC, if enforcement against the company proves to be ineffective, the members of the management board are jointly and severally liable for its obligations. A member of the management board may be released from liability, as referred to above, if they can demonstrate that a bankruptcy petition was timely filed or a restructuring proceeding was opened at the same time or an arrangement was approved in the proceeding for approval of an arrangement, or that the failure to file a bankruptcy petition was not due to their fault, or that despite not filing a bankruptcy petition and not opening a restructuring proceeding or not approving an arrangement in the proceeding for approval of an arrangement, the creditor did not suffer any damage.
3.2 Financial responsibility of directors regarding unpaid taxes.
According to Article 116 § 1 of the Tax Ordinance, for tax arrears of a limited liability company, a limited liability company in organization, a simple joint-stock company, a simple joint-stock company in organization, a joint-stock company, or a joint-stock company in organization, the members of its management board are jointly and severally liable with their entire assets if enforcement from the company’s assets proves to be wholly or partially ineffective, and the member of the board:
1) has not demonstrated that:
a) a bankruptcy petition was timely filed or a restructuring proceeding was initiated in accordance with the Law on Restructuring of May 15, 2015, or an arrangement was approved in the proceeding for approval of an arrangement as provided in the Law on Restructuring, or
b) the failure to file a bankruptcy petition was not due to their fault;
2) does not identify the company’s assets from which enforcement would substantially satisfy the company’s tax arrears.
Article 299 CCC and Article 166 of Tax Ordinance serve as main basis for transferring financial claims from company to directors. Art. 116 of Tax Ordinance is not completely identical to the regulation contained in Art. 299 CCC, however, this does not change the fact that both provisions contain the same exemption condition, which is the timely submission of a bankruptcy petition. Furthermore, the determination of this circumstance must be made by referring to the provisions of the Bankruptcy and Reorganization Law, as neither art. 116 of the Tax Ordinance nor art. 299 of the Commercial Companies Code defines issues related to insolvency and the deadline for filing a bankruptcy petition.
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
