Sometimes management services provided by Members of the Management Board are performed on the basis of the Contract. In such cases, doubts arise as to whether a member of the Management Board of the Company does not act as a VAT taxable person who, due to its content, Article 113(13)(2) point (b) of the PTU Act is not entitled to tax exemption.
According to Article 15(1) PTU laws, taxable persons are legal persons, organisational units not having the legal personality of natural persons, carrying out themselves the economic activity referred to in Article 15(2) the act, whatever the purpose or the outcome of such activities.
From the concept of economic activity provision from Article 15(3)(3) PTU laws exclude activities whose revenues are listed in Article 13(2-9) Act of 26 July 1991 on income tax on natural persons if, for the performance of those activities, persons are related to the person ordering the performance of a legal activity by ties forming the legal relationship between the person ordering the performance of the activity and the person carrying out the activities commissioned as regards the conditions for the performance of those activities, remuneration and liability of the person ordering the performance of the activity third.
The necessary condition for the exclusion of a member of the board of directors from business activities is the existence between the company and the manager of a legal relationship that standardises the conditions for the performance of the activity and remuneration – typical components of the contract of an order commonly concluded by entrepreneurs but also the acceptance of the liability of the commissioning company to persons third.
The key distinguishing factor under the PTU Act is the conduct of business activity from other types of professional activity not forming from a member of the board of directors The taxpayer's company is an indication in the liability contract Companies towards persons third.
This may be a legal responsibility, but it may also include economic risks relevant to business activities.
As per content Article 293(1) KSH: ‘A member of the board, supervisory board, audit committee and liquidator shall be liable to the company for damage caused by an act or omission contrary to the law or provisions of the articles of association, unless he is not guilty.’ This liability is a liability to the company, not to persons third. Nor does the content change this Article 219(2) KSH the status of independence of a board member in the performance of its duties, according to which: ‘the supervisory board shall not be entitled to give instructions to the board concerning the conduct of the company’s affairs, or the fact that it has sole responsibility for the company’s obligations or liability for the company’s tax obligations.
Confirmation of the exclusion of a Member of the Management Board implementing management benefits towards the Company is provided in individual interpretations issued, including in the interpretation of the Director of the Tax Chamber in Warsaw on 7 February 2011 - The signature. IPPP2-443-856/10-3/AK.
Implementation of the conditions referred to in Article 15(3)(3) The PTU Act, which defines the scope of exclusion from the definition of a VAT taxable person, leads to the fact that the activities of a member of the Management Board of the Company carrying out their benefits to it do not constitute activities which may be regarded as activities of an active VAT taxable person.