New rules on the liability of the management board and persons actually managing the company
The proposed amendments to the Tax Ordinance (UC138) could significantly change the way liability of company managers is assessed. The new model is expected to focus more on how a company is managed tax-wise and whether key decision-makers exercised due diligence to prevent tax arrears.
Who will be held
responsible?
The proposed regulations are important not only for formal management board members. Liability may also apply to individuals who, despite not being registered in the National Court Register, participate in company management and make or shape key decisions regarding its finances and operations.
What will be important
in practice?
Properly organised tax governance will become even more important, i.e. a clear division of responsibilities, proper flow of information, effective procedures, control mechanisms and documentation of decisions made.
How to demonstrate
due diligence?
For the management board and persons holding managerial positions in companies, this is not only an element of the proper functioning of the organization, but above all a basis for demonstrating that due diligence has been exercised and the company’s tax area has been properly supervised.
It’s no longer just a matter of whether a company is filing taxes correctly. A key factor will also be whether managers can demonstrate that they have created a system to mitigate these risks.
What do the proposed changes mean in practice for the management board?
In practice, tax settlement obligations may be performed by various individuals and entities – accounting or finance department employees, a financial director, a shared services center, or an external accounting firm. However, from the perspective of the proposed regulations, how managers oversee the performance of these obligations will also be important.
This doesn’t mean that management must personally review every invoice or accounting entry. However, it will be crucial to create organizational operating principles that enable management to obtain information about significant tax risks and irregularities and respond to them in a timely manner.
Check if your organization:
- it is known who is responsible for particular taxes and reporting obligations;
- formal scope of competences correspond to the actual way of operating;
- it is specified who prepares, verifies and approves the settlements;
- there are clear rules for reporting significant risks to the management board;
- it is known which events require escalation or additional consultation;
- significant tax decisions and positions are properly documented;
- the management board receives periodic information on risks and irregularities;
- there is a procedure for action if an error is detected;
- the applicable procedures are actually applied;
- the organization periodically checks the effectiveness of control mechanisms;
- knowledge about processes is not concentrated solely in one person;
- the company is prepared to change an employee, accountant, system or shared services center.
If the answer to several of these questions is “no,” “I don’t know,” or “it depends on the specific person,” it is worth reviewing your current tax management model.
Let’s talk about the review
For the management board and other management personnel, this may not only be an element of the proper functioning of the organization, but above all, a basis for demonstrating that they have exercised due diligence and properly supervised the company’s tax area.
The 3 most important aspects of the proposed reform
Due diligence and tax governance will become the basis for management protection
One of the key elements of the project is to link the liability of the managing person with the assessment of whether he or she has exercised due diligence in order to prevent the occurrence of tax arrears.
This has significant practical and evidentiary implications. If a manager’s actions are assessed several years later—during proceedings concerning liability for arrears—it may be crucial to be able to reconstruct the circumstances in which they made decisions, the information they had at the time, and the actions they took in response to identified problems.
In practice, what is important is not only taking appropriate actions, but also the ability to demonstrate why certain decisions were made and how the manager performed the duties assigned to him.
Liability may extend beyond the formal board members
The draft provides for an expansion of the group of persons to whom the provisions on liability for a company’s tax arrears may apply.
Not only the formal function disclosed in the National Court Register may be important, but also who actually exercises management powers in the company.
In practice, special analysis may be required in situations where a person outside the formal management board:
- makes key decisions regarding the company’s operations or finances,
- decides on the method or order of settling liabilities,
- approves important transactions or determines how they will be carried out,
- actually manages the operations of the Polish company from the foreign headquarters,
- issues instructions to the formal management board that have a real impact on the management of the company’s affairs.
Therefore, the analysis of the actual management model is of particular importance, especially in capital groups where decisions are made at multiple levels or outside the formal structure of the Polish company.
Grounds for exemption from liability
The bill provides for an additional possibility of being released from liability for a company’s tax arrears. A manager will be able to invoke this ground if they can demonstrate that, prior to the initiation of liability proceedings against them, they took steps that led to a significant reduction in the arrears.
According to the bill’s justification, this means settling over 50% of the company’s tax arrears. This solution, therefore, rewards not the mere fact of taking corrective action, but its actual effectiveness. A small or symbolic repayment of arrears will not be sufficient.
From a management perspective, this means that not only the prevention of arrears can be important, but also the speed and effectiveness of the response once they are identified.
What is tax governance and due diligence?
The draft amendment does not explicitly define the concepts of “tax governance” or “due diligence in the performance of corporate obligations.” However, the justification for the amendment provides some guidance on how these terms should be understood. It indicates, among other things, that the standard should be the implementation of effective and adequate organizational governance within a company, ensuring the proper performance of its tax obligations.
So what is this order?
It is a coherent system of rules, responsibilities, processes and control mechanisms that are intended to ensure the proper performance of a company’s tax obligations.
A small company conducting relatively simple operations will require a different scope of security than a large entity operating in an international group, carrying out numerous cross-border transactions and subject to numerous tax obligations.
When designing appropriate solutions, the following should be particularly important:
- scale and type of activity,
- organizational structure of the company,
- the number and complexity of transactions carried out,
scope of tax obligations, - tax risks typical of the company’s operations.
Tax governance should not be complex for its own sake. It should be proportionate to the organization’s actual needs and applicable to everyday operations.
The scope of our support
Stage 1 – Tax governance review
The first step is to determine how the company’s tax management system currently functions. We verify whether current processes, procedures, and control mechanisms are adequate for the company’s operations and whether they enable management to demonstrate due diligence.
A tax governance review is not a classic tax audit, the purpose of which would be to thoroughly check the correctness of each transaction or settlement.
What does an inspection look like?
We begin our work with a questionnaire that allows us to learn about the company’s organizational structure and how key duties are performed.
We then analyze existing internal documentation and interview selected individuals involved in tax and financial processes.
This allows us to assess the practices and customs prevailing within the Company and identify areas that require additional action.
The result of the review is:
- a report presenting an assessment of the current tax area management model,
- identification of the most important organizational gaps and weaknesses,
- identification of areas requiring additional security,
list of recommended actions, - division of recommendations according to their importance and urgency,
- identification of documents, procedures or other solutions requiring preparation or updating.
We categorize identified risks as high, moderate, and low. For each identified area, we prepare recommendations, outlining the actions necessary to mitigate risk, strengthen tax governance, and adapt processes to the proposed changes. This provides the company with a specific action plan to gradually improve the organization’s tax security.
Stage 2 – Implementation and documentation
After completing the review, we translate the recommendations into solutions that can be implemented in the company’s daily operations.
The scope of the second stage results directly from the needs identified during the review and may include, in particular:
- preparing or updating instructions on key tax areas,
- developing procedures for dealing with unusual or significant events,
- preparation of competence procedures and a responsibility matrix,
- establishing rules for reporting tax risks to the management board,
- planning periodic tax reviews,
- preparing tools to document decisions and actions taken.
We don’t implement procedures according to a single, universal template. The solutions we develop should reflect the company’s actual operations, structure, and organizational capabilities.
The result of the second stage is orderly tax governance, which helps the organization make the right decisions and makes it easier for managers to demonstrate that appropriate supervision of the tax area has been ensured.
Benefits for the management and the organization
Clear division
of responsibilities
The organization knows who performs, verifies and approves individual actions and at what point the matter should be forwarded to the management board.
Better visibility
of risks
The Management Board receives structured information about problems requiring decisions, additional analysis or the use of protection instruments.
Strengthening the ability
to demonstrate due diligence
The company documents the mechanisms in place, the information received, and the actions taken in response to identified risks.
Greater predictability
of decisions
Those responsible for finance and taxes operate within specific guidelines. They know which incidents require additional analysis, escalation, or approval.
Process
continuity
Changing an employee, accountant, accounting office, system or shared services center does not result in a loss of knowledge about how to perform key duties.
Greater security
for managers
Organizing competences and decision-making limits situations in which the actual scope of influence of a given person is wider than their formally assigned responsibility.
A properly designed and effectively implemented tax management system can enhance the ability to demonstrate that managers have provided appropriate oversight, responded to risks and exercised due diligence.
How to protect yourself against unwanted liability for tax arrears?
The proposed changes increase the importance of actions taken before tax arrears arise. Therefore, the appropriate time to review tax management, the division of responsibilities, and the actual decision-making model is before the new regulations come into force.
A well-prepared system should not only reduce the risk of tax errors, but also enhance the security of key decision-makers – management board members and people outside the National Court Register who actually participate in managing the organization.
As a result, the management board and other management personnel gain not only a better-organized tax system, but above all greater predictability, a sense of security and the ability to make decisions based on clearly defined rules and identified risks.
How to start cooperation?
We begin by discussing the organization’s structure, decision-making, and key challenges in tax and finance. This allows us to initially identify areas that require special attention.
In the next step, we conduct an independent assessment of the company’s existing model and identify areas that may require improvement or additional security.
We present specific recommendations along with their prioritization. The company receives clear information about what needs to be changed, in what order, and why.
If the review indicates such a need, we support the company in implementing recommendations and preparing solutions tailored to its actual operating model.
We support the team in using the implemented solutions and periodically check their validity and effectiveness.
There’s no need to rebuild the entire system at once. The first step could be to review your current solutions and determine whether, and to what extent, your organization requires additional security.
Call and arrange a conversation
Want to check whether your current tax management model provides an adequate level of security for management and finance staff? We invite you to talk.
Contact
59 Złota Street Skylight Building, 14th Floor 00-120 Warsaw, Poland
