A Warsaw-based technology company receives a notice from the National Revenue Administration (Krajowa Administracja Skarbowa, KAS). The letter names the CEO and CFO personally. The subject: alleged irregularities in VAT settlements spanning three financial years. The board has 14 days to respond before a formal investigation opens.

Under the Kodeks karny skarbowy (Fiscal Penal Code, KKS), board members bear personal criminal liability for tax offences committed in connection with the company's operations. Liability attaches to the individual who managed the company's financial affairs at the relevant time – not the entity itself. Penalties range from a daily fine of up to PLN 53,280 to custodial sentences of up to five years for the most serious fiscal crimes.

This guide explains how KKS proceedings unfold, what defence strategy looks like at each stage, and where board members most often lose ground. The structure follows the procedure chronologically: from the first KAS signal through investigation, voluntary disclosure, and trial preparation. Three business scenarios illustrate how manufacturing, IT, and foreign-investor situations differ in practice.

What triggers personal KKS liability for board members?

KKS liability does not require intent to defraud the state. It requires only that a person responsible for the company's tax affairs acted in a manner that caused a fiscal shortfall. The National Court Register (Krajowy Rejestr Sądowy, KRS) entry showing board membership is, in itself, evidence of that responsibility. Courts treat formal appointment as a starting point for establishing culpability.

Three categories of conduct generate the highest exposure. First, VAT carousel involvement – even unknowing participation in a fraudulent supply chain can implicate a board member who failed to apply adequate due-diligence procedures. Second, underreported corporate income tax (CIT) arising from aggressive transfer-pricing arrangements later disallowed by KAS. Third, late or incorrect submission of the Jednolity Plik Kontrolny (Standard Audit File, JPK) files, which KAS cross-references automatically against declared output and input tax.

The threshold separating a fiscal offence (wykroczenie skarbowe) from a fiscal crime (przestępstwo skarbowe) is twice the minimum monthly wage. In 2026 that figure stands at approximately PLN 8,666. Below the threshold, the matter is handled as a summary infraction. Above it, criminal proceedings apply, with all the procedural consequences that follow – including the possibility of asset seizure within 48 hours of charge.

One point boards consistently underestimate: liability can attach even after resignation. If the tax shortfall arose during a director's term, the resignation does not extinguish personal exposure. We have seen former CFOs contacted by KAS investigators more than two years after leaving a company (Mazowieckie region, winter 2025).

How does a KKS investigation actually proceed?

A KKS investigation follows a defined procedural sequence. KAS first conducts a tax audit (kontrola podatkowa). If audit findings suggest a fiscal offence, the matter is referred to the Financial Investigation Department (Wydział Dochodzeniowo-Śledczy). The board member then acquires the formal status of suspect (podejrzany), at which point full criminal-procedure rights activate – including the right to remain silent and the right to defence counsel.

The investigation phase typically runs six to twelve months. During that window, investigators may request documents, freeze bank accounts, and summon witnesses. The critical decision point arrives early: whether to engage proactively or to wait. Waiting is almost always the wrong choice. Investigators who receive no cooperation build their case from KAS audit files alone, which present the most adverse interpretation of the facts.

Voluntary disclosure (czynny żal) is the single most powerful tool available at this stage. Under Polish fiscal criminal law, a board member who voluntarily discloses the offence to the authority – before the authority becomes aware of it – is exempt from punishment entirely. The disclosure must be filed before KAS formally notifies the suspect of the investigation. Once that notification is served, the window closes permanently. That is an irreversible consequence boards cannot recover from later.

For a manufacturing client in Silesia (spring 2026), our team filed a voluntary disclosure within nine days of receiving the first KAS audit notice. The resulting exemption covered a potential liability exceeding PLN 1.8m. The board members avoided criminal records and retained their eligibility to serve as directors under Polish corporate legislation.

What defence strategy works at each stage?

Defence strategy must be calibrated to the procedural stage. Acting too late – or choosing the wrong instrument – forfeits options that cannot be recovered once the investigation formally opens. The decision matrix below summarises the principal instruments.

  • Pre-audit stage: internal compliance review, JPK reconciliation, voluntary correction of tax returns within 30 days.
  • Audit stage: controlled cooperation with KAS, legal privilege over counsel communications, challenge of audit scope.
  • Investigation stage: voluntary disclosure (if window open), silence rights, challenge of asset-freeze orders before the district court.
  • Indictment stage: plea negotiation (dobrowolne poddanie się karze), expert witness strategy, challenge of evidence admissibility.
  • Trial stage: full defence on merits, sentence mitigation, appeal to the regional court within 14 days of judgment.

The IT-sector scenario illustrates a specific risk. Software companies that mis-classify R&D expenditure under the IP Box regime face CIT recalculations that KAS routinely refers for KKS investigation. The defence in these cases centres on demonstrating that the board acted on professional tax advice – the so-called "due diligence shield." Documentation of external counsel engagement before filing is the key evidence. Without it, the board's good faith argument is difficult to sustain.

Foreign investors face an additional layer of complexity. A German parent company whose Polish subsidiary is under KKS investigation may find that the Polish board member – often a local nominee director – lacks the commercial understanding to give a coherent account of group-level transfer-pricing decisions. Coordinating the defence across jurisdictions, and ensuring the Polish counsel has access to the group's transfer-pricing documentation, is non-negotiable. Cross-border insolvency experience is also relevant here: where a group restructuring intersects with a KKS investigation, the sequencing of steps matters enormously. For related considerations, see our analysis of cross-border insolvency involving Poland and Cyprus.

What are the most common mistakes boards make?

Most KKS cases that end badly for board members share a recognisable pattern. The mistakes are procedural, not substantive. The underlying tax position is often defensible – but it is never tested because the board's early missteps destroy the procedural foundation.

The first and most damaging mistake is speaking to KAS investigators without counsel present. KAS investigators are not obliged to remind suspects of their right to silence during the audit stage (as opposed to the investigation stage). Statements made during audit interviews are admissible in subsequent criminal proceedings. A board member who explains the company's VAT methodology in a two-hour audit meeting may inadvertently provide the prosecution's primary evidence.

The second mistake is failing to separate the company's tax defence from the board member's personal criminal defence. These are distinct proceedings with different goals. The company's tax counsel is optimising for the lowest tax assessment. The board member's criminal counsel is optimising to avoid a criminal record. The two strategies can conflict. We have seen tax advisers agree to factual stipulations in tax proceedings that later formed the basis of a criminal charge against the board member who authorised the settlement (Małopolska region, autumn 2025).

The third mistake is underestimating the interaction between KKS proceedings and insolvency law. If the company files for insolvency while a KKS investigation is open, the insolvency administrator gains access to all company records – including internal communications that may be adverse to the board. Restructuring Poland entities under KKS pressure requires careful sequencing. For parallel considerations in cross-border contexts, see our guide on cross-border insolvency involving Poland and Italy.

What to prepare before instructing criminal defence counsel:

  • All KAS correspondence received, including audit notices and access-to-files requests.
  • Board resolutions delegating tax-compliance responsibilities to specific individuals.
  • External tax advice documentation relied upon when filing the challenged returns.
  • JPK files and VAT registers for the periods under review.
  • Corporate structure charts showing the board member's formal role at each relevant date.

A specific note for technology companies: IP protection documentation – patents, licences, R&D project records – may be directly relevant to a KKS defence where the underlying dispute concerns IP Box or R&D relief. See our overview of IP protection strategy for Poland tech companies for the commercial context.

Your company's specific situation may already have crossed a threshold that makes certain options unavailable. Personal liability under the KKS is not abstract – it attaches to named individuals and follows them beyond their tenure. Waiting for the investigation to develop before taking advice forfeits the voluntary disclosure window and the audit-stage cooperation credit that prosecutors weigh at sentencing.

To receive an expert assessment of your board's KKS exposure, contact info@kordeckipartners.com. Our team will map the procedural stage, identify available instruments, and outline the steps needed to protect your position before options close.

Frequently asked questions

Q: Can a board member be held liable under the KKS for a tax error made by the company's accountant?

A: Yes. Under Polish fiscal criminal law, the board member responsible for the company's financial affairs at the time of the offence bears primary liability, regardless of whether the error was made by an internal accountant or an external adviser. The board member's defence in such cases focuses on demonstrating adequate supervision and reliance on professional advice – but that defence requires documented evidence of both. Simply saying "the accountant did it" is not sufficient.

Q: How long does a KKS investigation typically last, and what does it cost to defend?

A: Investigation phases typically run between six and eighteen months from formal opening. Trial proceedings add a further six to twenty-four months in complex cases. Defence costs vary widely. A straightforward voluntary-disclosure filing may require ten to twenty hours of counsel time. A contested trial involving transfer-pricing disputes or multi-year VAT reconstructions can require several hundred hours. Early engagement is significantly cheaper than late-stage crisis management – the voluntary-disclosure window, once closed, cannot be reopened.

Q: Does resigning from the board before the investigation opens eliminate KKS liability?

A: No – and this is one of the most common misconceptions we encounter. Liability under the Fiscal Penal Code attaches to the person who held responsibility at the time the offence was committed. A resignation after the fact does not extinguish that liability. It may, however, affect the scope of future exposure if the company continues to operate. Former directors should seek individual legal advice promptly after resignation if they have any reason to believe the company's tax affairs were irregular during their tenure.

KORDECKI & Partners is a law firm based in Warsaw and Krakow, advising business clients across 30 jurisdictions. Our team combines expertise in Polish and international law with a practical approach to white-collar defence, restructuring, and fiscal criminal proceedings. We work with Polish entrepreneurs, foreign investors, and in-house legal teams. To discuss your situation, contact info@kordeckipartners.com.

Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. KORDECKI & Partners assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@kordeckipartners.com.