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

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.