Tax advisor: Sending burofaxes expressing disagreement with the management of the company after reviewed tax periods does not change the liability of a member of the Board of Directors

The High Court of Justice of Extremadura determines that sending burofaxes expressing disagreement with the management of the company does not exempt the liability of a member of the Board of Directors, even when they are sent after the tax periods in question.

In the case under review, the Administration attributed subsidiary liability to the plaintiff for not having taken the necessary measures as a member of the Board of Directors to comply with the company’s tax obligations. It was shown that the plaintiff was a founding partner of the company since 1996 and a member of the Board of Directors since his appointment. Given his role on the Board of Directors, he cannot argue ignorance of the tax defaults, as he had the obligation to supervise the company’s compliance with its tax obligations. It is not acceptable to argue that his participation in the Board of Directors was only formal and that he was not aware of the non-compliances, since his appointment and duration in office gave him responsibility for monitoring the management of the company.

The Chamber holds that the plaintiff acted negligently in failing to monitor the company’s compliance with its tax obligations, despite the fact that the defaults occurred during his time as a director. The subsequent sending of burofaxes expressing disagreement is not sufficient to exonerate liability, since they did not specifically address the supervision of tax obligations. Furthermore, the Chamber considers irrelevant the claimant’s primary focus on technical or engineering matters, as his role as a member of the Board of Directors does not change due to his primary occupation.

This decision contrasts with another ruling of the High Court of Justice of Catalonia, which establishes that liability cannot be derived simply from the status of member of the Board of Directors, but that their specific role in the management and administration of the main entity must be justified.

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