Family foundations are gaining popularity as a solution that enables not only the protection of assets and their optimal tax multiplication, but also, and perhaps above all, the protection of the financial interests of the beneficiaries. The scope of benefits granted, the conditions and the manner of their payment are specified in the foundation’s statute. The provisions of the Act on Family Foundations provide founders with a great deal of freedom in shaping the statutory provisions in this respect. It is also important to note that virtually any natural person, not only members of the closer or more distant family, can be a beneficiary of a family foundation.
The rules for taxation of family foundations are quite specific, as taxation takes place, as a rule, at two levels: at the level of the foundation – at the time of payment or making available to the beneficiary of the benefit, and at the level of the beneficiary – at the time of its receipt.
Taxation of foundations is regulated by the Corporate Income Tax Act, while the rules for taxation of beneficiaries are set out in the Personal Income Tax Act (PIT). Generally, benefits from a family foundation are classified as so-called other sources of income under the PIT Act.
According to the applicable regulations, benefits received by beneficiaries of a family foundation are, as a rule, subject to PIT. However, the legislator has provided for exemptions for certain groups of beneficiaries depending on the degree of kinship with the founder:
Exemption for immediate family: beneficiaries included in the so-called zero group according to the Inheritance and Donations Tax Act, i.e. spouse, descendants (children, grandchildren), ascendants (parents, grandparents), siblings, stepson, stepfather, stepmother, are exempt from PIT on benefits received.
Other beneficiaries: non-zero beneficiaries are taxed at the following rates:
- 10% for persons included in tax group I or II in accordance with the Act on inheritance and donation tax, i.e.: son-in-law, daughter-in-law, parents-in-law, descendants of siblings, siblings of parents, descendants and spouses of stepchildren, spouses of siblings and siblings of spouses, spouses of siblings of spouses, spouses of other descendants;
- 15% for other people;
Beware of hidden profits!
It is worth paying attention to the institution of the so-called hidden profits. It refers to situations in which the foundation incurs certain expenses or makes benefits to the founder, beneficiaries or related entities, which do not necessarily take the form of typical benefits, but in fact constitute a financial gain for the benefit of eligible persons. The catalogue of benefits considered as hidden profits is specified in the Corporate Income Tax Act.
The distinction between a standard benefit to beneficiaries and a benefit constituting a “hidden profit” is crucial. Benefits from a family foundation considered to be hidden profits:
- are not covered by the tax exemption on the terms described above,
- are not eligible for the same source of revenue,
- are subject to taxation without the possibility of applying reliefs, even if the beneficiary is a member of the founder’s immediate family.
As a consequence, the beneficiary must recognize the revenue, qualify it as an appropriate source of revenue and tax it in accordance with the appropriate rules. In practice, this means that even if the beneficiary of benefits in the form of hidden profits is the founder’s immediate family, the founder will not be able to benefit from the tax exemption available in the case of standard family foundation benefits.
For further information, contact:
Robert Staniaszek, Junior Partner
Gorazda, Świstuń, Wątroba i Partnerzy adwokaci i radcowie prawni, Kraków
e: lp.moc.wsg@kezsainats.trebor
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