As already noted In the first Part of the article, the appointment of a member of the board of directors of a capital company involves not only liability for the company's obligations related to the company's commercial activities resulting from the Civil Code[1] and the Commercial Companies Code[2] whether for tax arrears based on Article 116 Tax Ordinance[3], but also – as this Article deals with – with fiscal penalty.
"for fiscal criminal offence or fiscal misdemeanour responds, as the offender, to those who, on the basis of a provision of law, of a decision of the competent authority, of a contract or of actual execution, deal with economic matters, in particular financial matters, a natural person, a legal person or an organisational unit not having legal personality, the separate provisions of which confer legal capacity.’
As a preliminary point, it should be clarified that, when a taxpayer is a limited liability company, it is not possible to bring such an entity into criminal liability because the tax penalty code[4], Just like the penal code.[5], is based on the personal responsibility of individuals only.
The exercise of management functions by natural persons in a company may be based on different grounds - a rule of law, a decision of the competent authority, a contract or the actual performance of management activities.
Regardless of the way in which the company takes office, any person dealing with its economic affairs may bear the fiscal penalty.
Liability of a member of the Management Board
Members of the board of directors of the company may assume criminal liability for fiscal criminal offence, which they shall commit acting on behalf of or in behalf of the companies they represent. This liability derives from the provision Article 9(3) KKS, which states that "for fiscal criminal offence or fiscal misdemeanour responds, as the offender, to those who, on the basis of a provision of law, of a decision of the competent authority, of a contract or of actual execution, deal with economic matters, in particular financial matters, a natural person, a legal person or an organisational unit not having legal personality, the separate provisions of which confer legal capacity."
The actual division of functions in the management of the company between individual members of the board of directors is important in order to bring fiscal penalties.
The Supreme Court stated that ‘when the management of the company carries out the affairs of the company and its chairman directs the work of the board, then if the company’s affairs are not entrusted as a contributor to the remuneration of natural persons (an advance on that tax) to another member of the board or to the manager of another organisational unit of the company, the President of the board of directors shall be the person who deals with its economic affairs in the above respects, unless it is indicated, according to the Article 31 Act on 29 August 1997 – Tax Ordinance (...) another person responsible for the company’s activities as a tax payer’.6 In view of the judgment cited above, it should be noted that the attribution of specific tasks to individual members of the board may have a decisive impact on their responsibilities.
For example, a member of the Investment, Financial or Sales Board will be liable only for his management functions.
Liability of the prosecutor and proxy
The tax penalty is also borne by persons involved in the conduct of the company's economic affairs on the basis of the decision of the competent authority. The term ‘competent authority’ should be understood in a broad manner and not be identified only with a state body. It may also mean the body of the company (e.g. the management of the company), which entrusts specific matters to another person, by granting the prosecution or power of attorney.
In view of the above, it must be concluded that, on the basis of the provision, Article 9(3) KKS may also be held liable by a proxy, proxy or other person, provided that these persons have been authorised by the resolution of the board to conduct the company's affairs.7
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[1] Act dated 23 April 1964 Civil Code (i.e. Journal of Laws of 2014, item 121). [2] Act dated 15 September 2000 Commercial Companies Code (i.e. Journal of Laws of 2013, item 1030), Next: KSH. [3] Act dated 29 August 1997 Tax Ordinance (i.e. dated 10 May 2012), Next: OP. [4] Act dated 10 September 1999 Tax Penal Code (i.e. Journal of Laws of 2013, item 186), Next: KKS. [5] Act dated 6 June 1997 Criminal Code (Journal of Laws, item 553 as amended). [6] Supreme Court Judgment dated 2 July 2002 (reference no. IV KK 164/02). [7] Cf. Judgment of the Głogów District Court dated 12 March 2010 (reference no. II Ks 11/09).