Firmans in the crosshairs! The Ministry of Finance wants to expand the scope of liability of third parties.
The tax liability of members of the management board, as well as third parties, is regulated by Article 116 of the Polish Tax Ordinance. On the basis of this provision, two judgments of the Court of Justice of the European Union were issued on:
- 27 February 2025 (file ref. no. C-277/24 Adjak);
- 30 April 2025 (file ref. no. C-278/24 Genzyński).
They did not question the compliance of this regulation with EU law, but prompted the Polish legislator to revise them.
In particular, as indicated in the justification for the amendments to these regulations, which results m.in from the statement of the Supreme Audit Office of 15 December 2025 “Management of tax arrears by the National Tax Administration” (file ref. no.: KBF.410.5.2.2025), the effectiveness of the provisions on the tax liability of third parties is noted to be grossly low. In this speech, special attention was paid to the liability of management board members for tax arrears of capital companies, pointing to the problem of the occurrence of the so-called pillars, i.e. persons who only fictitious perform the functions of members of the management board.
In order to solve the identified problems, the legislator proposes the following changes to the Tax Ordinance in the presented draft amendments.
Currently, due to the literal wording of Article 33b sec. 2 of the Polish Tax Ordinance, in the course of ongoing proceedings in the field of tax liability of companies, third parties may dispose of their assets without restraint, which may lead to the actual ineffectiveness of a possible decision ruling on their liability. The proposed changes are intended to make it possible to secure a given liability from the moment when the tax authority begins to aim to specify the liability of a third party for tax arrears of a company or other legal entity.
In addition, what is important, a new regulation of a sealing nature is also proposed – extending the subjective scope of liability for tax arrears of a capital company or a capital company in an organization also to the persons actually managing the company. A literal emanation of this is Article 116 § 8 point 1 letter 3 of the Polish Tax Ordinance after the proposed changes.
As emphasized in the justification for the proposed changes, the tax liability of the person actually managing the company is an anti-abusive regulation, i.e. it is intended to prevent the circumvention of tax law provisions through taxpayers’ actions aimed primarily at benefits contrary to the purpose of tax laws – in this case, by hiding the persons who actually manage the company in its organizational structure, so so that these persons do not fall within the scope of application of Article 116 of the Ordinance – the problem of the so-called pillars.
It is worth noting that the so-called “objective standard of due diligence”, which has been observed by the third party or not, will be of significant importance for the above-mentioned liability of third parties. In other words, a presumption will be applied that since a given company has allowed tax arrears to arise, the persons managing the affairs of that company have not exercised due diligence in the performance of their duties.
Importantly, an alternative possibility for a third party to release itself from tax liability for the company’s arrears is also envisaged. If such a person proves that he or she has taken actions that have led to a reduction in the amount of this arrears in the majority of cases, he or she will also not be liable for such tax arrears.
To sum up, the presented amendment to the Tax Ordinance significantly increases the scope of tax liability of third parties and should allow for more effective and efficient enforcement of tax liabilities from persons who actually manage the affairs of companies, m.in. through a faster possibility of securing their assets.
