To bring an action before the court against a dimensional decision or to bring an appeal against a judgment of cassation is not a preliminary question in proceedings concerning a person’s liability third for tax arrears resulting from this dimensional decision. The legislator's will was to conduct proceedings on the liability of persons third on the basis of a dimensional decision which is final in the administrative process of the instance and not on the basis of a decision which has been confirmed by a final judgment of the administrative court.
The head of the tax office conducted proceedings concerning the joint and several liability of members of the board and limited liability company, for its tax arrears in corporate income tax and tax on goods and services.
The decisions on these taxes were contested before the administrative courts which dismissed them, so the company brought cassation proceedings.
one from the members of the Management Board, he requested the suspension of the procedure for the joint and several liability ruling until the Chief Administrative Court has examined the appeals. But the warden refused. His ruling was maintained in force by the Director of the Chamber of Tax Administration.
A board member did not surrender and filed a complaint.
The cassation complaint is not a preliminary issue
The case was dealt with by the Provincial Administrative Court in Olsztyn, which indicated that according to Article 201 section 1 point 2 Tax Ordinance, the authority suspends proceedings where the examination of the case and the decision is subject to the outcome of a preliminary question by another authority or court.
However, it cannot be regarded as not to bring a cassation complaint. The fact that the outcome of another proceeding may have an impact on the outcome of the administrative case does not yet give rise to its suspension, as it was possible to consider and issue a decision.
The CSA stressed that the possible repeal of tax decisions by the NSA could be regarded as a basis for reopening the joint and several liability procedure of the board member. In view of the above, the complaint was dismissed. However, this did not end the judicial battle as a board member brought a cassation complaint.
Doubts as to initiating the procedure
The Supreme Administrative Court indicated that according to Article 239e Tax Ordinance, the final decision shall be enforceable unless it has been suspended. The adoption and service of decisions determining the amount of tax obligations to the company was not contested. The taxpayer didn't pay, so there was a default.
Thus, proceedings on the tax liability of the person could be initiated third for the company's obligations.
On the other hand, bringing a complaint or a cassation complaint is not a preliminary question, as the mere finding that the outcome of another proceeding may affect the fate of the administrative case does not yet warrant its suspension.
Confirmation of the legality of the decision is not necessary
The Court of First Instance stressed that the legislator’s wish was to conduct proceedings concerning the liability of persons third on the basis of a dimensional decision in the administrative process of the instance. It is therefore not necessary for its legality to be confirmed by a final judgment of the administrative court.
Therefore, the possibility of suspending proceedings on the liability of persons third because of a complaint or an appeal against a dimensional decision, it would only be possible if a specific provision of law provided for that possibility. In view of the above, the NSA dismissed the cassation complaint.
NSA judgment of 16 December 2020, reference no. II FSK 2244/18
Author: Bartosz Nawrot
Legal consultant with the law firm Russell Bedford Poland 2018.