October 16, 2025Open Access

Third party liability for tax arrears of a limited liability company – critical commentary on the judgment of the Supreme Administrative Court of 11 September 2024, III FSK 1038/23

Key Points

The ruling suggests that a member of the management board can be liable for the company's tax obligations under specific circumstances.
Key evidence indicates that even with a single creditor, a bankruptcy petition can still be necessary, challenging previous bankruptcy law principles.
The analysis critiques the ruling as misaligned with core bankruptcy law, particularly regarding group enforcement and equitable treatment of creditors.
This interpretation raises concerns about the appropriateness of imposing liability without multiple creditors being present, warranting further legal scrutiny.

Abstract

The paper analyses the liability of a member of the management board (third party) of a limited liability company for the obligations of that company, in the event of failure to file a bankruptcy petition in due time, in a situation where the company had only one creditor (the State Treasury). The author critically refers to the ruling that fits into the line of case law, according to which even in a situation where there is only one creditor, there are grounds for filing a bankruptcy petition. The gloss indicates that this statement is contrary to the essence of bankruptcy law, which is the so-called group enforcement proceedings, intended to ensure equal opportunities in satisfying receivables. In the absence of the requirement of a plurality of creditors, it is inappropriate to burden the company with the obligation to file a bankruptcy petition, and thus to impose subsidiary liability for the company’s obligations.

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