Undoubtedly, being a member of the Management Board in a company provides numerous benefits including: having the greatest decision-making power, but it should also be borne in mind that it is associated with a sense of enormous responsibility for the decisions made. People who are responsible for the financial settlements of a given company, including accountants, who have knowledge in the field of law and taxes, might bear corporate, employee and even liability under the Penal Fiscal Code.

Fiscal penal liability

It is common knowledge that the scope of responsibility of people dealing with finances is described in detail in the provisions contained in the Penal Fiscal Code in Poland (KKS), however, this catalog is extremely extensive, which might result in several problems. According to the assumptions, each prohibited act is the responsibility of the person who committed it, and not the company as an institution. Important articles regarding the enforcement of fiscal penal liability for prohibited acts include:

• tax evasion (Article 54);
• stating untruths (Article 56 of the Criminal Code);
• failure to keep books or unreliable keeping (Article 60 and 61KKS);
• failure to pay taxes (Article 57 of the Penal Code);
• untimely payment of tax by the payer or failure to collect tax by the payer (Articles 77 and 78 of the Penal Code);
• failure to issue invoices (Article 62 of the Penal Code);
• untimely submission of tax information (Article 80 of the Penal Code).

The consequences of the above-mentioned acts, in accordance with the Code, depend mainly on the scope of competence resulting from legal provisions, decisions, contracts or actual actions taken. In the case of companies with a single-person management board, the president, who decided on matters related to the company’s operation and supervised the process of implementing these decisions which was handled by employees at lower levels, bears the greatest responsibility.

What consequences are we talking about?

The penalties depend on the offense and might range from fines for fiscal offenses, through fines for crimes (up to a maximum of PLN 20 million), to imprisonment for a period of 25 years.

In such situations, one should carefully analyze the division of competences present in the company, which will largely determine the responsibility of a given person. First of all, the company’s management board has the greatest responsibility, but this issue has also become controversial assuming the presence of a multi-person management board. Would each member of the management board be equally liable for any misconduct if they had clearly defined separate competences and responsibilities? According to the court’s ruling, in such  cases, only the management board member who was responsible for the company’s finances is liable to fiscal penal liability.

Of course, the situations where tax liability may extend to other external entities, such as accounting offices or tax advisors, are also observed. However, this only applies if they have been entrusted with the care of the company’s settlements and supported by a contract. This is explained as follows: “entrusting tax settlement obligations to professional third parties does not by itself abolish the taxpayer’s liability in the sphere of fiscal penal law, provided it is proven that he was aware of the possibility of incorrect settlement and agreed to a settlement that was inconsistent with provisions of tax law” (resolution of the Supreme Court of May 23, 2002, V KKN 426/00). It is commonly known that people who indirectly deal with the company’s settlements are not comfortable with the fact that they may be partially responsible for any errors in their work, e.g. regarding accounting books. However, this is an issue they should be aware of when they decide to provide their services. Furthermore, it is recommended to create agreements clearly, in such a way that the company’s management board and its representatives are not liable for the errors of their tax advisor and, conversely, that the advisor is not liable for errors made by the contractor or resulting from his or her negligence.

As a member of the management board of a dynamically developing company or an accountant responsible for settling the company’s finances, it is necessary to be aware of the fact that these people might be held criminally liable for certain offenses. Therefore, it is essential to make every effort to ensure that the company takes appropriate actions to regulate issues related to tax settlements. Control and appropriate processes are an effective step towards minimizing the chances of financial shortcomings or errors.