A Warsaw-based technology company receives a summons. The National Revenue Administration (Krajowa Administracja Skarbowa, KAS) has opened a fiscal criminal proceeding under the Kodeks karny skarbowy (Fiscal Penal Code, KKS). The board chair is named as a suspect. The company has 30 days before the first formal hearing – and every decision made in that window shapes the entire defence.

The KKS imposes criminal liability on individuals who manage a taxpayer entity, including board members, proxies, and de facto managers. Liability arises where a fiscal offence – such as VAT fraud, undisclosed income, or failure to pay withholding tax – is attributed to the entity and a responsible individual can be identified. Penalties range from a daily fine to imprisonment of up to 5 years for the most serious offences. Acting within the first 30 days of proceedings materially affects the outcome.

This alert explains who is currently at risk, what thresholds trigger criminal rather than administrative treatment, and what board members must do immediately. It also addresses the intersection of KKS proceedings with insolvency and restructuring – an area where delayed action forfeits protection that cannot be recovered later.

Who does the KKS target, and what are the current thresholds?

The Fiscal Penal Code distinguishes between fiscal offences (przestępstwa skarbowe) and fiscal misdemeanours (wykroczenia skarbowe). The threshold between them is updated annually. For 2026, a fiscal misdemeanour applies where the value of the subject matter or the amount of tax prejudice does not exceed PLN 17,800. Above that figure, the conduct becomes a fiscal offence carrying criminal consequences.

Board members are the primary targets. Polish corporate legislation treats the management board as the organ responsible for the company's tax obligations. The National Court Register (Krajowy Rejestr Sądowy, KRS) entry is not decisive – KAS investigators look at who actually exercised management functions. A director who resigned six months before the audit can still face liability if the relevant tax period falls within their tenure.

Three categories of conduct attract the most proceedings:

  • Undisclosed or understated VAT output tax
  • Failure to remit withheld personal income tax (PIT) to the tax authority
  • Fraudulent invoice chains involving fictitious transactions

The Polish Financial Supervision Authority (Komisja Nadzoru Finansowego, KNF) has no direct role in KKS proceedings, but where a company is regulated, parallel KNF and KAS investigations create compounding personal exposure. That combination – fiscal criminal liability alongside regulatory sanction – is the scenario board members most frequently underestimate.

What changed in 2025–2026 that increases board exposure?

Two developments have materially shifted the risk profile. First, KAS gained expanded access to JPK (Jednolity Plik Kontrolny, Standard Audit File) data, including the new JPK_CIT format that applies to large taxpayers from 2025. Cross-referencing VAT and CIT data automatically flags discrepancies that previously required a manual audit. Detection timelines have shortened from years to weeks.

Second, the KSeF (Krajowy System e-Faktur, National e-Invoice System) mandatory rollout – scheduled for 1 February 2026 for large taxpayers – creates a new category of KKS exposure. Issuing invoices outside the KSeF system after the mandatory date, or manipulating invoice data within it, constitutes a fiscal offence. Board members who approved non-compliant billing workflows face direct personal liability.

We secured the discontinuation of KKS proceedings against a manufacturing board member in the Mazowieckie region (autumn 2025). The key was demonstrating that the director had implemented a documented compliance programme before the audit commenced. That evidence – assembled within 21 days of the first KAS letter – was decisive.

The practical consequence: passive board members are no longer protected. Under current KAS enforcement practice, failure to implement adequate internal controls is itself treated as evidence of culpable negligence. That finding opens the door to personal liability for the full amount of the tax shortfall – an irreversible consequence once the indictment is filed.

What must board members do in the first 30 days?

Speed determines outcome. The KKS provides a voluntary disclosure mechanism (czynny żal) that extinguishes criminal liability if filed before KAS formally notifies the suspect that proceedings have commenced. Once that notification is served, the window closes permanently. A board member who waits for legal advice after the notification has already forfeited this protection.

Immediate action items, in order of priority:

  • Retain specialist white-collar defence counsel within 48 hours of any KAS contact
  • Preserve all accounting records, email correspondence, and board resolutions from the relevant tax period
  • Assess whether voluntary disclosure remains available – this requires a formal legal opinion, not an internal assessment
  • Review the company's solvency position: if restructuring Poland proceedings may be needed, the 30-day insolvency filing deadline runs concurrently

The intersection with insolvency is not theoretical. Where KKS proceedings reveal a tax liability that renders the company insolvent, board members face a second, independent liability track under insolvency law. Missing the 30-day filing deadline for insolvency proceedings triggers personal liability for creditors' unsatisfied claims. Our article on board liability for tax arrears sets out that exposure in detail.

A further consideration: pre-pack restructuring (pre-packaged arrangement) can ring-fence operating assets from the fiscal liability, preserving business value while the criminal matter is resolved. This option requires court approval and must be initiated before insolvency is formally declared. For cross-border groups, the analysis in our guide on cross-border insolvency involving Poland and Romania is directly relevant where subsidiaries operate across jurisdictions.

One practical checklist before the first KAS meeting:

  • Confirm which individuals held management functions during the disputed tax period
  • Identify all related-party transactions that KAS may characterise as fictitious
  • Obtain copies of all JPK files submitted for the relevant periods

Non-tax matters can also surface during KAS searches. If the company holds office leases with unusual payment structures, those documents may be reviewed for evidence of undisclosed consideration. Our note on office lease review for Poland tenants covers the documentation points that most frequently attract scrutiny.

Your company's specific situation requires immediate assessment. Waiting until the formal notification arrives precludes voluntary disclosure and forfeits the most effective defence instrument available under the KKS.

If your board has received any KAS correspondence – including a routine audit notice – and the relevant tax period involves amounts above PLN 17,800, contact us now. We will assess voluntary disclosure eligibility, coordinate the document preservation strategy, and evaluate whether restructuring protection is required in parallel: info@kordeckipartners.com.

Frequently asked questions

Q: Can a board member be personally liable under the KKS even if the company has already paid the disputed tax?

A: Yes. Payment of the underlying tax liability reduces but does not eliminate KKS criminal exposure. The fiscal offence is constituted at the moment the conduct occurred. Post-audit payment is treated as a mitigating factor in sentencing, not as a bar to prosecution. Voluntary disclosure filed before formal notification remains the only instrument that fully extinguishes liability.

Q: How long does a KKS investigation typically last before charges are filed?

A: The preparatory proceedings phase can last between 3 months and 3 years depending on complexity. However, the critical decisions – voluntary disclosure, document preservation, and restructuring assessment – must be made within the first 30 days. Delay beyond that window does not reduce the investigation timeline; it only removes available defences.

Q: Does resigning from the board stop KKS liability from accruing?

A: Resignation after the relevant tax period has no effect on liability for conduct that occurred during tenure. It is a common misconception that KRS deregistration as a board member provides protection. KAS attributes liability based on who exercised management functions when the fiscal offence was committed, not who holds the position at the time of the audit.

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, fiscal criminal proceedings, and restructuring. 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.