Commentary on the judgment of the Supreme Administrative Court of 10 October 2023 (Case no. III FSK 2767/21)

Supreme Administrative Court departed from longstanding line of judicial practice in a verdict that presented a position that Article 17 of Private International Law Act rules out application of Article 116 in relation to Article 116a of Tax Ordinance Act in regard to members of management boards (boards of directors and analogues bodies) of foreign companies. This gloss is critical towards verdict, because we cannot agree with a position that conflict of laws principles arising from International Law Act can rule out application of polish legal regulations regarding responsibility of members of management of legal entities for overdue taxes of said entities, that is a regulation that is without a doubt within the field of public law. Firstly, legal provisions of Private International Law Act are regulating jurisdiction in regard to legal relationships in area of private law that are conducted internationally. Legal relationship between a person responsible for other person’s overdue taxes and tax creditor that comes into existence due to decision of tax authority is legal relationship in area of public law. Secondly, supposedly if we were agreeing with Court’s position, it should be noted that Article 17 of Private International Law Act contains conflict of laws principles in regard to status of a legal entity, not to responsibility of a person for other person’s debt. Therefore it has different scope of application than abovementioned regulations of Tax Ordinance Act. It couldn’t effect in ruling out application of those regulations.