The High Court of Cassation and Justice ruled that, with regard to the liability of company directors for failure to declare and/or pay tax liabilities when due, the Fiscal Procedure Code does not establish a legal presumption of liability, but only the possibility of being held liable by the tax authority. The liability of directors for the insolvency of a company is a tort liability.
In order for the director to be held liable, it must be proven that the acts listed in the law have caused the company to become insolvent, and the director’s guilt must exist and be proven by the tax authorities, as his guilt is not presumed.
Art. 25 (2) of the Fiscal Procedure Code provides that directors or any other persons who, in bad faith, have caused the non-declaration and/or non-payment of tax obligations when due are jointly and severally liable with the debtor.
The High Court of Cassation and Justice ruled that the liability of directors under Article 25(2) of the Fiscal Procedure Code is a tort liability in and its specificity lies in the fact that the law exhaustively defines the categories of acts that are considered unlawful. The acts listed must have caused the debtor’s or company’s insolvency, which presupposes the existence of a typical causal link between the wrongful act and the damage.
Therefore, in order for the director to be held jointly and severally liable, it is necessary to prove a concrete causal link between the wrongful acts and the insolvency of the principal company. The liability of the directors or shareholders does not arise automatically if the company’s liabilities or part of them cannot be covered, but only if it is proved that the directors or shareholders have caused the company’s insolvency by culpably committing one of the acts expressly listed by the law. In addition, the damage must be a direct result of these wrongful acts and must have caused the company’s insolvency, and the director’s fault must be proven.