The Accounting Law imposes an obligation on the entities designated therein (among others, commercial companies) to prepare annual financial statements. Until now, the issue of signing such a report did not raise major questions – the report had to be signed by all members of the entity’s governing body and by the person keeping the entity’s books, i.e. the accountant. However, as a result of amendments to the Accounting Law, from January 1, 2022, the possibility of signing the financial statements by one member of a multi-member body was introduced.
Signing of financial statements by the entire board of directors of the company
Pursuant to paragraph 2 of Article 52 of the Accounting Law, the financial statements shall be signed – at the same time indicating the date of signature – by the person entrusted with keeping the books of account and the head of the entity, and if the entity is managed by a multi-member body – by all members of the body or by at least one person who is a member of the body in the manner referred to in paragraph 2b. Refusal to sign the financial statements requires a written justification attached to the financial statements.
Please note that the financial statements are currently signed only electronically, i.e. using either an ePUAP trusted profile or a qualified electronic signature. Thus, in the classic model, all members of the company’s board of directors sign the report using either an ePUAP trusted profile or a qualified electronic signature.
Filing of declarations by other members of the board of directors – new from 1.01.2022.
As a result of the 2021 amendments to the Accounting Law, a new provision has been introduced, namely Article 52(2b). According to the new provision, if an entity is managed by a multi-member body, the financial statements may be signed by at least one person who is a member of the body after the other members of the body have made declarations that the financial statements meet the requirements of the law, or refuse to make such declarations.
In order to take advantage of Article 52(2b) of the Accounting Law, it is therefore necessary for the other members of the board (i.e., those who do not sign the financial statements themselves) to make a statement declaring the legality and correctness of the financial statements to be signed by their “representative.” Such a statement requires a qualified electronic signature, a trusted signature, a personal signature or a handwritten signature. In the latter case, the board member signing the report itself shall ensure that electronic copies of these documents are made.
What about signing overdue financial statements?
Undoubtedly, the new regulations apply to financial statements prepared for 2021 and beyond. As a rule, reports for previous years should have been prepared and signed even before the amendment came into effect. However, practice shows that this is not always the case – many reports for earlier years were not prepared or signed for various reasons.
Therefore, if the report relates to previous fiscal years (e.g., 2020), but its signing is late and takes place after January 1, 2022, is it possible to take advantage of facilitating the signing of the report by one member of the board of directors, while receiving approving statements from the others? It seems that the wording of the regulations does not prevent the use of this method in the case described. This is because the signing of the report itself (and, in fact, this is the only activity that Article 52(2b) of the Accounting Law refers to) already occurs after the new regulations come into force.
The above issue has not yet been conclusively resolved either in jurisprudence or in doctrine. Addressing such a topic opens a discussion that will probably continue in practice.
Treść art. 299 KSH jest powszechnie znana wśród członków zarządu spółek z o.o., jednak nie jest to jedyna sankcja za niezgłoszenie wniosku o upadłość spółki we właściwym terminie. Okazuje się, że poza wierzycielami spółki, (nie)zgłoszeniem wniosku o upadłość może być zainteresowany także prokurator.
Jakie są różnice pomiędzy prokurentem a członkiem zarządu spółki z o. o.? Czym różni się odpowiedzialność prokurenta od odpowiedzialności członka zarządu?
