A judgment of the Supreme Administrative Court (NSA) from December 2024 (case no. III FSK 661/23) confirms the established line of jurisprudence regarding the liability of management board members of a limited liability company for its tax obligations.
The NSA clearly stated that the joint and several liability of a board member arises from the formal holding of this position, regardless of the actual scope of performed duties. Voluntary limitation of responsibilities does not exempt a formally appointed board member from liability.
The case concerned a limited liability company that was a registered VAT taxpayer between May 12, 2015, and January 9, 2019. The company was later deregistered under Article 96(9a)(2) of the VAT Act. By a decision dated February 12, 2021, the head of the tax office determined the company’s VAT liability for the period from February to September 2017. The company neither appealed the decision nor paid the required amount, which led to enforcement proceedings that proved ineffective and were subsequently discontinued. The tax office then initiated proceedings to hold the former president of the management board personally liable for the outstanding tax debts and, on November 25, 2021, issued a decision confirming such liability.
The former president appealed, requesting that the decision be overturned. He argued that although he formally held the position of president during the period in question, he was not the actual decision-maker in the company. He claimed he had no access to the company’s records and therefore lacked the knowledge necessary to file for bankruptcy. However, the Director of the Tax Administration Chamber upheld the original decision, pointing out that the appellant had voluntarily granted a power of attorney to another person, thereby enabling them to manage the company’s affairs.
Despite filing a complaint, the Provincial Administrative Court (WSA) in Poznań, in its ruling of February 10, 2023 (case no. I SA/Po 692/22), found the challenged decision to be lawful.
A cassation complaint was filed, but the NSA also rejected it in its judgment of December 10, 2024 (case no. III FSK 661/23). The NSA emphasized that, based on the factual findings of the first-instance court, the appellant had formally held the position of board member pursuant to a resolution of the extraordinary shareholders’ meeting dated March 20, 2017, and had submitted his resignation on May 9, 2018. Therefore, he held the board member position during the period in which the company’s VAT liabilities for February to September 2017 arose.
The NSA referred to the prevailing jurisprudence—which it endorsed—that joint and several liability of a board member applies regardless of the scope of assigned duties or the actual actions performed or supervised. The law refers to the formal holding of board membership for a specific period, regardless of whether the person actively managed the company. Consequently, voluntarily limiting one’s scope of action does not exempt a board member from liability. Moreover, knowledge of the company’s financial and asset situation is a statutory obligation under Article 201 § 1 of the Commercial Companies Code. Failure to fulfill this obligation cannot serve as grounds for claiming lack of fault in failing to file for the company’s bankruptcy.