The bill amending the General Tax Code (No. UC138) fundamentally overhauls the rules governing the tax liability of third parties for capital companies’ tax arrears. It comes in response to recent CJEU judgments,[1] the Ombudsman’s February statement[2] and the post-audit report of the Supreme Chamber of Audit (NIK) of December 2025. We examine what’s changing, who will be affected by the new rules and what steps are worth taking right now.
What is changing in the liability rules?
Until now, a board member could be released from liability by demonstrating, among other things, that a petition for bankruptcy had been filed or that restructuring proceedings had been opened in due time.
The bill abandons this model entirely and introduces a liability regime based on failure to exercise due care in the management of the company’s affairs.
The new framework reverses the burden of proof: since a company has been allowed to accumulate tax arrears, the persons directing its affairs are presumed not to have exercised due care. It is therefore for managers to demonstrate that due care was in fact observed.
Who is affected by the amendment?
The bill widens the circle of individuals who can be held liable to include de facto managers of the company.
Until now, liability was borne exclusively by those who formally held managerial positions.
The new rules will also capture those who directly or indirectly exercise powers typically reserved for the management board. This includes, among others, persons who steer the company by exerting influence over those who formally hold managerial positions.
Simply holding a commercial power of attorney (prokura) or acting as an attorney-in-fact is not enough to qualify as a de facto manager.
The bill does not extend liability to the company’s tax advisers or accountants.
Old rules vs. new rules – a comparison
How to be released from liability for the company’s tax arrears?
The bill provides for two avenues of defence:
- Exercise of due care. The manager must demonstrate that they took all measures that could reasonably be expected of a professional manager. Due care is deemed to have been exercised where the tax arrears arose as a result of force majeure
- Remedial measures. The manager must demonstrate that, before proceedings to establish their liability were initiated, they took measures which led to a reduction of more than 50% of the company’s tax arrears
The standard of due care
The bill defines the following three pillars of the due care standard:
- The authority will examine whether the manager acted as an abstract, model person with the appropriate competences for the role would have acted. Note: an argument based on insufficient tax knowledge will not constitute a valid defence
- Responsibility for the entirety of the company’s affairs. Each management board member is responsible for the whole of the company’s affairs, regardless of any internal division of duties
- Organisational governance. The company should have effective procedures in place to ensure the accuracy of its tax settlements, that is to say, any arrangements aimed at properly fulfilling tax obligations
New rights of managers
A decision assessing a company’s tax liability is not absolutely binding on the authority in proceedings against a manager. While it is an official document presumed to be accurate, it may be challenged by means of counter-evidence. If the manager can prove that the company’s tax arrears do not exist or that their amount is different, the authority must accept these new findings.
This right is only available to individuals who had no opportunity to influence the outcome of the tax assessment procedure against the company.
Third parties are also entitled to inspect the files of the tax assessment procedure, subject to the protection of classified information and trade secrets.
The authority must notify the company of its intention to make the files available, and the company then has 14 days to identify any documents subject to protection.
Key limitations and risks
Exclusions in the case of anti-avoidance provisions
The right to rely on the exercise of due care and the right to challenge the findings of a tax assessment decision are excluded where the company’s tax arrears result from the application of:
- The general anti-avoidance rule
- Measures restricting treaty shopping
- Provisions on fictitious invoices
- Additional VAT liability
A manager may, however, reinstate both defences by demonstrating that they neither knew nor could have known of the circumstances justifying the application of those provisions.
Risks for managers
- The concept of a ‘de facto manager’ is deliberately vague, which may lead to disputes over its interpretation
- The extension of the limitation period from 5 to 7 years increases the risk exposure period
- The removal of carve-outs where anti-avoidance provisions apply creates a regime akin to strict liability, incurred irrespective of culpability
- The possibility of securing claims against the manager’s assets while the procedure is pending, coupled with the removal of the condition that enforcement must have been ineffective, may provide a significant means for the tax authorities to exert pressure
Transitional provisions
The act is to enter into force 14 days after its promulgation, and the new rules will apply to tax arrears arising after that date.
Arrears that arose earlier will remain governed by the existing rules.
What steps are worth taking now?
Those who manage companies should review and strengthen their tax procedures as soon as possible.
The 14-day vacatio legis leaves little time to adapt to the new requirements. Our key recommendations include:
- Reviewing and implementing appropriate tax compliance procedures
- Documenting tax compliance procedures and bearing in mind that an internal division of duties within the management board does not shield against liability, and that the burden of proof rests on the manager
- Assessing whether individuals managing the company without formal authority, or doing so indirectly, may be deemed to be de facto managers and must therefore be prepared to face tax liability
It is advisable to monitor the progress of the legislative process and prepare a preliminary analysis of the company’s management structure and existing tax procedures in light of the new requirements.
Have questions? Contact us
[1] In the cases of Adjak (C-277/24) and Genzyński (C-278/24)
[2] Letter from the Ombudsman dated 26 February 2026 to Andrzej Domański, Minister for Finance and the Economy, ref. VII.612.19.2025.CW/MC
