Tax Alert: New bill on family foundations

In principle, a family foundation is an entity set up to manage the family company’s assets and secure property for the group of individuals indicated by the founder, most often members of their family, providing for more efficient family business succession.

Under the proposed legislation, family foundations shall possess legal personality and will be required to have their seat in the territory of Poland. Setting up a family foundation is to take place based on a notarial memorandum of association or a testament including a declaration on establishing a family foundation. Family foundations may be established only by an individual in a full legal capacity or a group of such individuals, who will be jointly referred to as a founder (a family foundation set up under a testament can only have one founder).

Each family foundation must be entered into the family foundation register.

The group and the scope of rights of the foundation beneficiaries is determined by the founder. A family foundation beneficiary can be either a natural person or a non-governmental organization conducting public benefit activities. A founder may also be a beneficiary.

The new version of the bill upholds the ban on conducting business activity by family foundations, which is explained by the need to contain risks related to conducting business activity and the necessity to secure the assets involved.

It provides, however, for a list of activities that may be taken up by a family foundation. Such activities may consist in: disposing of property owned or held by the foundation, provided that the property was not purchased solely for the purpose of its further re-sale, rent, lease or making available the property held or owned by the foundation on any other basis, entering into and participating in companies, investment funds, cooperative societies and similar entities seated in Poland or abroad, purchasing and selling securities, derivative financial instruments, and rights of similar character, granting loans to companies, trading in foreign currencies held by the foundation to make payments related to its operations, including making payments to its beneficiaries and/or running an enterprise as part of a farm.

Since the family foundation income of the founder and beneficiaries is subject to personal income tax, it will not be liable to inheritance and donation tax.

Importantly, property passed and payments made to a natural person as a result of the foundation’s dissolution will be subject to personal income tax, the amount of which will depend on the degree of kinship between the beneficiary and the founder (exemption is available in the case of a founder or founder’s relatives belonging to the closest kinship group specified in the Act on Inheritance and Donation Tax, i.e. spouse, descendant, ascendant, stepchild, sibling, stepfather and stepmother, while in the case of other beneficiaries the tax will amount to 15%). Only a portion of property passed and payments made to a founder or founder’s relatives belonging to the closest kinship group as a result of the foundation’s dissolution will be exempt from personal income tax. It will correspond to the proportion appropriate for this founder specified in the inventory of property.

Family foundations will enjoy a subjective exemption from corporate income tax. This means that the exemption will cover free-of-charge acquisitions of assets, e.g., from the founder (providing a family foundation with assets will be tax-neutral), as well as income obtained by the family foundation from the activities it carries out, to the extent permitted by the Act on the Family Foundation.

However, no exemption will be available in income tax on payments made by the foundation to a beneficiary or a founder, as well as on property transferred in connection with the dissolution of the family foundation. The tax will be set at 15% of the value of payments rendered or made available by the foundation, directly or indirectly, to the beneficiary or the founder or of the revenue corresponding to the value of property transferred to support development of the family foundation.

Moreover, the above-mentioned exemption will not apply to family foundations conducting business activity other than economic activity allowed under the Act on Family Foundations.

Furthermore, the bill on family foundations brings amendments to the Polish inheritance law in the scope of legitim (i.e., the part of an estate that children or other close relatives can claim against the decedent's testament). The amended regulations provide for, inter alia, a possibility to renounce the legitim, spread it into instalments, postpone the payment deadline, or reduce its amount. Moreover, the payments received from the family foundation by the entitled person will reduce the legitim’s value.

A family foundation can become liable for the founder’s obligations, including their maintenance obligations arose before the foundation was established (joint and several liability) and after, if the enforcement against the founder’s property proves ineffective (subsidiary liability). Ensuring financial security to individuals in relation to whom the founder has maintenance obligations should occur in the first place.

New regulations on family foundations are to enter into force 3 months after promulgation.