These are important changes for managers managing capital companies (limited liability companies, joint-stock companies, PSA), of which there are over 500,000. Members of the management board are jointly and severally liable for the companies' tax debts with all their assets. Today, they can be free from this responsibility if the conditions are met – primarily of a formal nature – specified in the Tax Ordinance (Article 116). However, this can be a big problem, and managers were helped by two last year's judgments of the Court of Justice of the European Union in the Polish cases of Adjak and Genzyński.
Last week, the Ministry of Finance proposed changes to the Tax Ordinance, which are intended to implement the judgments' theses into the Tax Ordinance. However, the project is unfavorable for management board members and, in addition, it significantly expands liability for debts, and not only tax ones.
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What follows from the CJEU judgments on managers' liability for company debts
Beneficial for management board members the judgments of the Court of Justice of the EU were issued a year ago. We covered both in detail on Business Insider. The Court of Justice of the EU, in its judgment of 27 February 2025 in case C-277/24 (Adjak), found that a member of the management board in the course of proceedings conducted against him on joint and several liability may effectively challenge the findings of the tax authority made as part of tax proceedings conducted against the company and have access to its files.
Read more: CJEU: landmark judgment in the case of management board members. What does this change?
In the second judgment of April 30, 2025 in case C-278/24 (Genzyński), the CJEU found, among other things, that Management board members should have a real opportunity to defend themselves against liability for companies' tax debts. For example, if during the period when they held a position in the company, there were no grounds for declaring it insolvent, they cannot be expected to take decisive action, such as filing for bankruptcy of the company.
See also: An important judgment for management board members. There were CEOs with a chance to defend themselves against debts
What does the draft amendment to the Tax Ordinance of March 18, 2026 provide for?
The project includes several fundamental changes.
The tax authority will be able to do so after initiating the proceedings on the liability of third parties for tax arrears of companies (partnerships and capital companies) issue a decision on security. The idea is to prevent a member of the management board who may be responsible for tax arrears, e.g. of a limited liability company, from disposing of assets from which the authority could later collect the arrears of taxes. The security will block this possibility.
According to the project, not only management board members (and former management board members) will be responsible for tax arrears of capital companies, but also “people managing the company”. The idea is that people who actually manage the company's affairs, but who do not formally perform management functions in a given company (sometimes, but not always, hiding behind the so-called columns), are also responsible for the tax debts of capital companies.
Moreover, the managing person may be held liable for the company's tax arrears did not exercise due diligence in exercising proper supervision over the company's affairs. Not only that, this the manager will have the burden of proving otherwise (when managing the company's affairs, she exercised due diligence to avoid tax arrears). The draft does not specify the definition of due diligence.
It also shows that there will be changes to the rules that will allow you to be free from liability for tax arrears. A person who proves that he or she has taken actions that have led to the reduction of the arrears for the most part will not be liable. Once again, we are dealing here with undefined and very vague concepts (what does “for the most part” mean, for example?).
In addition:
— the managing person may potentially gain access to the files of assessment proceedings conducted against the capital company,
— will also be able to question the factual and legal findings from the assessment proceedings conducted against the company,
— the authority will have two more years to issue a decision on liability for the manager's debts,
— a decision on the liability of a third party may be issued after the liquidation of the company and its removal from the register (in order to reduce the risk of tax fraud using the so-called “missing taxpayer” method).
Does the project turn the responsibility of management board members upside down?
According to Maciej Grochulski, the CJEU judgments were received enthusiastically in Poland. Against this background, the changes proposed by the Ministry of Finance should be considered as valid very disappointing, and even the rules of liability of third parties (management board members) have been turned upside down. — As a result, if the project came into force in its proposed form, the entire existing practice of applying these provisions, developed over the years, would most likely be thrown away, instead of being modified and improved under the influence of the CJEU judgments. In this context it would be more adequate (and fair) to talk about a revolution in the rules of liability for company arrears rather than about changing and adapting – comments Maciej Grochulski.
— The proposed changes raise many doubts and concerns – also states Dariusz Malinowski, partner in the Tax Advisory Department, head of the Tax and Court Proceedings Team at KPMG in Poland.
Experts point out the shortcomings of the project.
Currently, reminds Maciej Grochulski, only members and former members of their management boards are responsible for tax arrears of capital companies. However, the project introduces a completely new concept of “a person managing a company” (amended Article 116, paragraph 1 of the Tax Ordinance). This person will be:
- member of the company's management board,
- a director who is a member of the board of directors – in the case of a simple joint-stock company,
- proxy – in the case of a company in an organization in which no management board or board of directors has been appointed,
- partner of the company – in the case of a capital company in an organization in which no management board, board of directors or proxy has been appointed,
- a person who actually, directly or indirectly, exercises in the company the competences of at least one of the persons specified in the previous points.
In other words, the circle of responsible persons will be significantly expanded. However, as Maciej Grochulski says, The last point of the calculation may turn out to be a real “time bomb” – on its basis, the circle of people who may be liable for the companies' arrears potentially becomes unlimited. According to the expert, tax authorities will be able to try to assign such responsibility, e.g. to persons performing or only actually performing managerial functions in companies – responsible for a specific section of the company's activities (i.e. all managers, managers, directors), proxies or, in special circumstances, members of supervisory boards.
Dariusz Malinowski also points out that The extension of the limitation period for liability from 5 to 7 years may also be particularly controversial. — Combined with mechanisms suspending the limitation period, this may lead to situations in which proceedings will be conducted for several years, resulting in long-term legal uncertainty. – warns the expert.
Problems with due diligence
The regulations regarding due diligence of managers also raise doubts.
— The proposed criteria should be considered vague and therefore easy to abuse. The legislator indicates, among others: the need to have appropriate qualifications, but it is difficult to assess what they actually mean and whether the lack of specialized education in management would lead to a lack of due diligence – says Dariusz Malinowski.
The expert also points out that the implementation of “effective and adequate organizational order”, ensuring the proper implementation of the company's tax obligations, was also proposed as an element to demonstrate due diligence.
— However, there are no specific guidelines in this regard. Additionally, such a criterion may lead to the creation of additional bureaucratic obligations, which will also have to be implemented by smaller entities, often without appropriate organizational and financial resources, warns Malinowski.
In some cases, it will not be possible to free yourself from liability at all?
Maciej Grochulski also draws attention to another one a serious problem of this amendment, i.e. a change – to the detriment – of the so-called conditions that allow for release from liability. The project provides for cases (e.g. regarding the so-called empty invoices within the meaning of VAT) in which it will not be possible to free yourself from liability at all. — This is a solution completely unknown to the currently applicable regulations – comments the expert.
According to Dariusz Malinowski, there are also proposals in this regard excessively restrictive.
Maciej Grochulski also points out that in practice, a member of the management board will often not be able to effectively gain access to the case files from the assessment proceedings conducted against the company. — The Company will be able to block such access without going into specific details (explaining itself), and the authority – without further verification – refuses access to these documents. And the decision of the body in this matter delivered to the managing person is to be non-appealable. This solution actually completely destroys (circumvents?) the recommendations of the CJEU resulting from the judgment in the Adjak case – explains Maciej Grochulski.
Legislative stage — Draft act amending the act – Tax Ordinance (UC138)
Author: Łukasz Zalewski, journalist of the Law section, Business Insider Polska
