This Tuesday, we successfully concluded, in the team of: attorney Paweł Osiński and attorney Przemysław Perka, a years-long legal battle regarding the joint and several liability of a board member of a capital company for the company’s tax obligations amounting to over PLN 8,000,000.
The party to the dispute – a former board member of a limited liability company – did not even have a chance to defend herself against the assessment decision against the company, as she was no longer a board member at that time. Simply, a few years after she had ended her cooperation with the company, it turned out that tax authorities were conducting proceedings against her on the basis of Tax Ordinance provisions on the joint and several liability of a board member for the company’s unpaid tax obligations (in this case, an undue VAT refund).
The Provincial Administrative Court annulled the decision imposing joint and several liability on the former board member. And now, after almost two years of waiting for a hearing date, the Supreme Administrative Court confirmed the unfoundedness of the cassation appeal of the Director of the Tax Administration Chamber, dismissing it entirely. The judgment is therefore final.
It is impossible to describe first the disbelief, and then the joy and relief of our client, for whom a traumatic period of life ends – living with the specter of an impossible and unenforceable obligation: the necessity of repaying for the rest of her life an amount on which interest accrued annually by over PLN 300,000.
Our satisfaction resulted not only from the victory (which is obvious), but above all from the fact that as attorneys – i.e., representatives of a profession whose essence is legal assistance – we had the opportunity to support with our knowledge a party that in our conviction was harmed in the given factual situation, and to a large extent by the actions of state administration.
In this case, our sad experience gained in numerous cases involving tax liability or financial/economic crimes was once again confirmed. Namely, tax authorities and the prosecutor’s office, having at their disposal numerous legal instruments that gave a chance to actually recover state treasury losses from the company itself or other actually responsible entities, preferred to take a shortcut, directing their actions against the former board member. Despite being aware that there was absolutely no possibility that this person could repay the awarded tax liability.
In my humble opinion, this happens because these legal instruments are complicated and time-consuming (e.g., international cooperation of tax authorities, legal assistance in criminal cases, or international cooperation in the AML area) and as a result are reluctantly used.
Tax authorities then settle for solutions such as assigning joint and several liability to a board member despite knowing that there is not the slightest chance of recovering even part of the awarded amount from that person. But what counts here is statistics. Awarded multi-million amounts look great in tables of “resolved cases” and at press conferences. Except that this has nothing to do with justice or care for public funds.
That is why, precisely in such cases where I feel that as a professional I am fighting not only in my client’s interest, but also for the proper application of legal norms – i.e., let us not be afraid of the word – for the administration of justice, the meaning of the attorney’s profession and the satisfaction of providing legal assistance manifests itself.
Paweł Osiński
Attorney