A brief overview of the regulations surrounding directors’ responsibilities in Poland.
Chapter 5
There are systems where personal responsibility of director is triggered only if he committed a serious breach of their duty of care which contributed to the company’s insolvency. This is not the case of Poland. In our legal system the transfer of financial responsibility to directors is automatic, if directors of insolvent company fail to file for bankruptcy. The purpose of such regulation is to “compel” board members to fulfill their obligations arising from relevant provisions regulating insolvency and restructuring proceedings. As a result, the regulation stipulates that in a situation where board members have timely filed for insolvency or restructuring proceedings, and a tax creditor has not been satisfied, they are still not held accountable for tax arrears.
The liability for the company’s obligations arises ex lege towards the creditor in the event of unsuccessful enforcement, when there is no obligational relationship between the creditor and a member of the management board.
Directors will not be exonerated from personal responsibility if a board decision is adopted, or they actions were authorized or ratified by the general meeting of shareholders.
Members of the board are responsible regardless of whether they actually received any financial benefits (for example, in the form of remuneration for serving as a board member or for being in an employment relationship with the company as a result). Even performing this role without remuneration does not exempt from responsibility, as there is no limitation based on the benefits received during the tenure of this position.
The responsibility lies with the individual holding the position of a board member, regardless of the relationship with the company (employment contract, managerial agreement, or maybe pure appointment with not contract of whatsoever nature).
The responsibility of directors is of subsidiary nature. The essence of subsidiary liability lies in the fact that the person assuming responsibility may be held liable in subsequent order, that is, only after the ineffectiveness of enforcement measures against the main debtor has been established.
There is a lot of discussion regarding how the ineffectiveness of enforcement measures should be proven. One obvious solution is the final decision to terminate execution proceedings due to the lack of assets of the debtor. However, let me quote a judgment related to tax debts which also allows for other means:
“When enforcement actions against the taxpayer prove to be wholly or partially ineffective, it is possible to issue a tax liability decision against a board member. Without establishing the ineffectiveness of enforcement measures, it is not possible to issue a tax liability decision against a board member. Nevertheless, the inefficacy of enforcement proceedings as outlined in Article 116 of the Tax Ordinance may not necessarily be determined solely by a final decision to terminate execution proceedings due to the lack of assets of the debtor. Other actions taken by the enforcement authority can also contribute to this determination, even if they do not result in a formal decision to cease execution proceedings. However, these actions must clearly indicate that the enforced claim cannot be satisfied from any part of the company’s assets” (as per the judgment of the Supreme Administrative Court dated April 5, 2022, case no. III FSK 4880/21, Legalis).
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.
