KEY QUESTIONS RAISED BY THE POLISH FAMILY FOUNDATION
The Polish Family Foundation has not yet entered into force (this will happen in May 2023) but is already very popular. Moreover, it contributes to increasing activity and taking actions aimed at planning succession. In particular, entrepreneurs running family businesses are trying to explore new opportunities. Read the answers to the most frequently asked questions about the Family Foundation Act.
1. Who can be the beneficiary of a family foundation?
Any natural person can be the beneficiary of a family foundation – including the founder themselves, as well as a non-governmental organization, not being a unit of the public finance sector and not operating in order to earn profit, one which performs public benefit activities, i.e., socially useful activities.
The circle of beneficiaries or the manner in which they are selected shall be laid down in the articles of association drawn up by the founder. This means that the beneficiaries do not need to be listed by name and surname in the articles of association – it is enough to describe the mechanism of their selection. Beneficiaries selected in accordance with the provisions of the Articles of Association shall be included in the list of beneficiaries by the Board of Directors of the Foundation. This list is of key importance, because it is the basis for the payment of benefits by the family foundation.
The Family Foundation – selection of family members as beneficiaries
Example: together with a partner and mother, we want to establish a family foundation. We want the partner and the son to be the only beneficiaries. Is it possible?
Yes. In the articles of association of a family foundation, the persons being the beneficiaries or the method of determining them should be indicated. The founders – even some of them – can be beneficiaries in a family foundation. At this point, only the issue of the difference in taxation may arise. In the event that there is more than one founder in a family foundation, the benefit shall be taxed in proportion to the assets contributed by that founder, taking into account relevant tax groups. This means that if, for example, one founder in the beneficiary’s zero group contributed PLN 70,000, and the other – who is not in the beneficiary’s zero group – PLN 30,000 then only 30% of the value of the benefit is taxed – the PIT rate in this case is 15%.
2. What amount of the foundation’s income is exempt from taxation, and what amount is subject to CIT?
As a rule, a family foundation is exempt from taxation with the CIT tax. The obligation to pay it (in the amount of 15%) arises only when a family foundation pays a benefit to a beneficiary. Then, the family foundation is obliged to pay the 15% CIT tax on the value of the paid benefit and the beneficiary is obliged to pay 15% income tax if they are not in the founder’s zero group. The, so-called, zero group of the founder includes their spouse, siblings, descendants and ascendants, as well as a stepdaughter, stepson, stepfather and stepmother. Therefore, the benefits of individual beneficiaries may be subject to personal income tax to a varying extent – after all, the beneficiaries do not have to be related to the founders.
A family foundation may conduct non-taxable business operations only to the extent specified below. If a family foundation goes beyond the statutory scope and starts business operations other than the one mentioned, it will be obliged to pay the CIT tax in the amount of 25% on the income obtained from the operations outside the exempted scope.
The activities of the foundation exempt from taxation include:
- disposal of property, unless the property was acquired solely for the purpose of further disposal,
- renting, leasing or making property available for use on a different basis,
- joining commercial companies, investment funds, cooperatives and entities of a similar nature, having their headquarters domestically or abroad, as well as holding shares in these companies, funds, cooperatives and entities,
- acquisition and disposal of securities, derivatives, and similar rights,
- granting loans to capital companies in which a family foundation holds shares, to partnerships in which a family foundation participates as a partner, and to beneficiaries,
- trade in foreign means of payment, belonging to a family foundation, for the purpose of making payments related to the activities of a family foundation,
- the production of non-industrially processed plant and animal products with the exception of processed plant and animal products obtained under special agricultural production units and products subject to excise duty, provided that the quantity of plant or animal products from proprietary cultivation, breeding or rearing for the production of the product in question is at least 50% of that product,
- and forest management.
A family foundation will be allowed to carry out the activities referred to in the last two points only in connection with a farm operated by it.
3. Can a foundation lend premises to its beneficiary free of charge?
Yes, a family foundation can lend the premises to its beneficiary free of charge, as this constitutes a form of a paid benefit. In the case of the benefit, the subject of which are, for example, rights or other types of benefits in kind, including objects and rights transferred or left at the disposal, free or partially free of charge, as well as other free or partially free of charge benefits, their value is determined by applying the provisions of the Corporate Income Tax Act. This means that when a foundation provides a benefit, the value of the benefit is always estimated on the basis of the market prices of comparable benefits.
4. How are the payments of benefits to beneficiaries taxed?
The principle is that a family foundation always pays 15% CIT on the value of the benefit paid to the beneficiary – regardless of the tax group of the beneficiary in relation to the founder.
The issue regarding the payment of income tax by a beneficiary is more complicated. A family foundation is obliged to collect the 15% personal income tax. This tax is collected and paid only if the beneficiary is a person not belonging to the zero group of the sole founder or not belonging to the zero group of all founders (if there is more than one).
The, so-called, zero group of the founder includes their spouse, siblings, descendants and ascendants, as well as a stepdaughter, stepson, stepfather and stepmother. Therefore, the benefits to individual beneficiaries may be taxed differently on personal income tax – depending on the degree of kinship with the founders.
When the beneficiary is in the, so-called, zero group of founders, the benefit they are entitled to is taxed in the scope of personal income tax in a proportionate manner. The proportionality of taxation refers to the percentage of the value of property contributed to a family foundation by the founder or founders of their non-zero group compared to the total value of the property contributed to the foundation.
How does the taxation of benefit payments from the foundation’s assets work in practice?
Example: one beneficiary who receives a benefit from a foundation with two founders belongs to the, so-called, zero group of only one of them. The founders made an equal contribution to the family foundation. Therefore, the beneficiary’s benefit will be taxed only in half with personal income tax.
Comment: Assuming equal contributions from either founder
5. How to pay taxes linked to real estate?
A family foundation is subject to the commercial property tax. This means that a family foundation will be obliged to pay income tax on income from a fixed asset being a building which:
- is a property or jointly owned property of the foundation as a taxpayer,
- has been made available for use in whole or in part on the basis of a lease, tenancy or another agreement of a similar nature,
- is located within the territory of Poland.
This tax will be paid in the amount of 0.035% of the tax base for each month. The tax base, in the case of this tax, is the sum of incomes from individual buildings, that is, above-mentioned fixed assets, reduced by the amount of PLN 10,000,000.
In turn, the property tax covers:
- land,
- buildings or parts thereof,
- nonbuilding structures, meaning objects that are not buildings or parts of them, related to the conduct of business.
In order to determine whether a family foundation is obliged to pay property tax, the provisions concerning this tax will be directly applied, and in relation to this tax, the family foundation will be treated as a legal person. Since the property tax, unlike the commercial property tax, is a local levy, the rates of this tax will vary depending on the location of the property.
6. What is the possible risk of an Actio Pauliana against a family foundation?
Actio Pauliana is an instrument used by creditors to protect their rights. It provides the possibility of claiming the legal ineffectiveness of actions performed by the debtor (e.g., the founder of a family foundation) with the detriment to the creditor(s). A legal transaction is performed to the detriment to the creditors if, as a result of this act, the debtor (i.e., said founder) became insolvent or insolvent to a greater extent than they were before the act was performed.
It should be emphasized that Actio Pauliana also applies to the property contributed by the founder to a family foundation. This means that, while making benefits/donations to the foundation, one should take into account the solvency of the founder, as well as the interests of creditors. In other words, transferring property to the foundation must not result in any detriment to the creditors.
7. Is it possible to contribute property to a family foundation at a later stage?
Yes, you can “add” property to a family foundation at a later time. Moreover, this property does not have to be provided only by the founder. Such an “addition of assets” may also be made by another person who is not the founder of the foundation.
The property can be contributed by the founder to the existing foundation, as well as any other person, at any time – in the latter case, however, it will not be the founding fund, which, as a rule, is added to the inheritance when the guaranteed share is calculated.
Thus, the property can be contributed to the foundation at any time by the founder themselves, the beneficiaries of the foundation, as well as third parties not related to the foundation, the founder, and the beneficiaries.
Summary
According to the Act, a family foundation is personally exempt from corporate income tax, which should mean that the donation (and thus the discussed contribution of property) made to the foundation should be exempt from tax. However, it should be noted that there are no provisions that accurately describe this issue, so it will be crucial to observe the practice of fiscal and judicial authorities in this regard.
Blog edited by dr Anna Maria Panasiuk
Founder and Managing Partner of Panasiuk & Partners, with many years of expertise in wealth management.
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