Planned changes in the scope of responsibility of company managers

The Ministry of Finance recently presented two draft amendments to the regulations, which (if adopted) will significantly change the rules governing the liability of persons managing companies and other legal entities for their tax arrears. These are:

• draft amendment to the Tax Ordinance of March 18 and
• draft act amending the Tax Ordinance Act and the Fiscal Penal Code Act of 9 February.

We will take a look at the proposed changes.

Amendment to the Tax Ordinance

The planned amendment to the Tax Ordinance heralds one of the most significant reforms to liability rules in recent years. The draft not only changes the technical aspects of proceedings but essentially reshapes the entire philosophy of liability for corporate tax arrears.

Although the project is still in the negotiation phase and may be subject to modifications, it’s worth examining its main assumptions today. Their implications could have very specific consequences for those holding management positions .

The EU’s impulse for change

The starting point for the proposed amendment is two judgments of the Court of Justice of the European Union (hereinafter referred to as the ” CJEU ” or ” Court “) from 2025 in the Adjak (C-277/24) and  Genzyński (C-278/24) cases, which concerned the Polish model of third-party liability for companies’ tax obligations. The CJEU confirmed that the very assumption of this model is consistent with EU law, provided the provisions are properly applied.

The Court highlighted three issues in particular:

• the need to provide third parties with a real opportunity to challenge the findings made in tax proceedings against the company,
• the right of access to the files of such proceedings,
• the possibility of proving the absence of fault in failing to file a bankruptcy petition also in situations where the company had only one creditor.

The draft amendment is intended to implement the above guidelines into the Polish legal system. It also serves as a pretext for reforming the liability of managers for corporate tax liabilities .

Who can be considered a manager?

The new regulations introduce a broad definition of a person managing a company and also provide for the appropriate application of these regulations to other legal entities. Liability under the new regulations will apply not only to formal management board members, but also to directors, proxies, partners of companies in formation, as well as individuals who actually manage the company . A person who directly or indirectly exercises the powers of at least one of the aforementioned formal managers will be considered a person managing the company.

The purpose of this change is to limit structures in which the formal management board plays a superficial role and real decisions are made “behind the scenes ,” meaning situations in which so-called “front men” are used to circumvent, among other things, the possibility of being held accountable. At the same time, such a broad definition raises practical questions, including the status of proxies, supervisory board members temporarily delegated to perform management functions, and even accountants who manage the financial affairs of a given entity.

Due diligence as a basis for excluding liability

The existing liability framework was based primarily on criteria related to the company’s insolvency and obligations under bankruptcy law. In the new model, due diligence in the performance of management functions becomes a key concept .

Liability is to be excluded if the managing person proves that:

• exercised due diligence to prevent tax arrears or
• even before the proceedings were initiated against her, she took action which, for the most part, led to a reduction in the arrears.

At the same time, the legislator tries to define the minimum standard of due diligence, indicating, among others:

• the need to have appropriate qualifications,
• the assumption of responsibility by each managing person for all the affairs of the company and
• implementing effective organizational governance in the company, guaranteeing the proper implementation of the company’s obligations.

A longer period of uncertainty

A significant and controversial change is the proposal to extend the deadline for issuing a third-party liability decision from 5 to 7 years . In practice, this means a longer period of uncertainty for managers.

What does this mean for managers?

The changes offer, on the one hand, stronger procedural guarantees and a more realistic defense option, while on the other hand, they significantly raise expectations for managers. A due diligence-based accountability model requires systematic documentation of actions: implementation of procedures, resolutions, risk analyses, and justifications for decisions.

Importantly, the bill is based on the presumption that the occurrence of tax arrears indicates a lack of due diligence – it will be up to the manager to prove otherwise. In practice, this means a shift in the burden of proof and a greater need for active participation in proceedings.

For many entities, the amendment should be a catalyst for reviewing their management structures and actual decision-making processes, and, subsequently, implementing procedures that will demonstrate due diligence in the event of legal proceedings. Solutions based on fictitious divisions of responsibility may prove insufficient when confronted with the new regulations.

Amendment to the Fiscal Penal Code

The second of the discussed projects – the amendment to the Fiscal Penal Code – contains both favorable and unfavorable changes for taxpayers.

The end of instrumental initiation of proceedings

The draft amendment proposes a long-awaited change, removing the initiation of tax criminal proceedings as a basis for suspending the statute of limitations for tax liabilities. This solution has been a source of considerable controversy for years, as it allowed tax authorities to mechanically and instrumentally extend the debt collection period, often without any real basis for pursuing tax criminal proceedings.

The removal of this requirement should be viewed positively, as a step toward increasing legal certainty and rebuilding taxpayers’ trust in the administration. However, it’s worth remembering that the new regulations will apply only to tax liabilities arising after the act’s entry into force. Consequently, with respect to “historical” liabilities, the ability to suspend the statute of limitations by initiating fiscal criminal proceedings will still exist, and the practical effects of this change will only be felt after several years.

Extension of the limitation period for tax liabilities and fiscal penal liability after its expiry

The proposals regarding the relationship between the statute of limitations for tax liabilities and the fiscal criminal liability of individuals raise significantly more doubts. The draft proposes a departure from the principle that the punishability of a tax offense ceases with the statute of limitations for the public debt . This means that even if the tax liability expires, fiscal criminal proceedings against the person responsible for the settlements can still be conducted.

In practice, this leads to a significant shift in risk: the company may benefit from the statute of limitations, while individuals – board members, financial directors or other persons responsible for taxes – will still be exposed to criminal proceedings and personal sanctions.

An additional problem is the potential detachment of tax criminal proceedings from prior tax determinations. In a situation where a final tax decision is not issued, criminal courts may be forced to independently assess complex tax law issues. This, in turn, creates the risk of divergent decisions and increases legal uncertainty for individuals.

From the perspective of boards and managers, this further extends the period during which the effects of past tax decisions can recur—even when the tax liability itself no longer exists. Combined with changes to third-party liability, changes to the definition of company management entities, due diligence requirements, and the shifting of the burden of proof to those in charge of company affairs, this change significantly increases the long-term level of personal risk associated with holding management positions.

How to prepare?

It is worth ensuring appropriate evidence in advance – writing down and implementing tax and tax risk management procedures, documenting their compliance, and engaging a tax advisor when assessing planned activities.

This is particularly important in the current environment of increasing tax transparency, where taxpayers provide authorities with an increasingly wider range of data (including within the KSeF or JPK CIT), and  the possibilities of analysing them are systematically growing .

In practice, this means that a lack of adequate preparation is increasingly rarely overlooked. Proper preparation allows you to mitigate tax risk and operate in a predictable and secure manner in the new reality.

If you have any questions or concerns, please contact us.