Is the Family Foundation subject to taxation?

Family foundation and CIT tax

A family foundation is a solution for people (founder) who want to manage their assets, including investment assets, in one organization in order to safely and effectively multiply them for generations while providing financial security to the founder and the founder's immediate family (beneficiaries).

The popularity of investing family wealth within the framework of family foundations also results from the fact that taxation of a family foundation, in comparison with taxation of activities conducted in other legal forms, may prove more beneficial and will encourage investment of assets accumulated in the foundation. Of course, under certain conditions, which the legislator has provided.

Czy wiesz jednak, jakie regulacje podatkowe będą miały zastosowanie do fundacji rodzinnej? W niniejszym artykule postaramy się przybliżyć regulacje podatkowe obowiązujące fundację rodzinną na gruncie podatku dochodowego od osób prawnych (CIT).

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Family foundation exemption from CIT tax

Family foundations are, in principle, covered by the subjective exemption from corporate income tax, however, this applies to situations where the family foundation conducts business activities within the scope described in Art. 5 of the Family Foundation Act, i.e. within the scope of:

1) the disposal of property, unless such property was acquired solely for the purpose of further disposal;

2) renting, leasing or making property available for use on another basis;

3) joining commercial companies, investment funds, cooperatives and entities of a similar nature with their registered office in the country or abroad, as well as participating in such companies, funds, cooperatives and entities;

4) acquisition and disposal of securities, derivative instruments and similar rights;

5) granting loans:

a) capital companies in which the family foundation holds shares or stocks,

b) partnerships in which the family foundation participates as a partner,

c) beneficiaries;

6) trading in foreign means of payment belonging to a family foundation for the purpose of making payments related to the activities of the family foundation;

7) production of plant and animal products processed in a manner other than industrial, with the exception of processed plant and animal products obtained within the framework of special branches of agricultural production and products subject to excise duty, provided that the quantity of plant or animal products from own cultivation, breeding or breeding used for the production of a given product constitutes at least 50% of that product (a family foundation may conduct this activity only in connection with the agricultural holding it runs);

8) forest management (a family foundation may only conduct this activity in connection with the agricultural holding it runs).

Exceptions to the exemption of a family foundation from paying CIT

19% CIT

The legislator introduced an exception in which conducting "permitted" business activities by a family foundation will not benefit from this exemption.

In relation to income generated by a family foundation from lease, tenancy or other agreement of a similar nature, the subject of which is an enterprise, an organized part of an enterprise or assets used for conducting business by the beneficiary, founder or an entity related within the meaning of art. 11a sec. 1 item 4 of the CIT Act with the family foundation, beneficiary or founder, where the amount of shares and rights referred to in art. 11a sec. 2 item 1 of the CIT Act is at least 5%. Although the legislator did not specify what activity it refers to, it can be assumed that he had in mind business activity, since we are talking about an enterprise here. Income generated from this will be taxed at the rate of 19 % CIT.  

Loss of the right to exemption

A family foundation in the organization loses the right to the subjective exemption if it has not been reported to the register of family foundations within six months of its establishment or the decision of the registry court refusing its registration has become final. The loss of the right to the exemption occurs from the date of establishment of the family foundation in the organization, and therefore with retroactive effect. 

In the above situation, the family foundation in the organisation does not benefit from the subjective exemption, and therefore settles tax according to general principles, and the tax base is income, i.e. revenue reduced by the costs of obtaining revenues - the CIT rate will be 19%.

Podwyższona stawka CIT –  25%

In a situation where the foundation's activities do not fall within the closed catalogue specified in art. 5 of the Family Foundation Act, the so-called penalty tax rate of 25% CIT will apply. With this measure, the legislator tries to protect the institution of the Foundation from its excessive use for the purposes of broadly understood tax optimization.

Building tax – rate 0.035%

A family foundation will not be exempt from the tax on income from buildings, i.e. the so-called minimum tax on commercial real estate, if the value of the family foundation's buildings exceeds PLN 10 million.

In practice, this means that if a family foundation becomes the owner of buildings located in Poland, which are put into use in whole or in part on the basis of a lease, tenancy or other similar agreement, and the value of these buildings resulting from the fixed assets register exceeds PLN 10 million, it will be obliged to pay a monthly tax in the amount of PLN 0.035% CIT on the amount by which the value of these buildings exceeds PLN 10 million.

In the opinion of the Director of the National Tax Information expressed in the individual interpretation of 28 March 2024, reference number 0111-KDIB1-2.4010.3.2024.1.MK, the deduction of tax paid on revenue from buildings:

– it is not possible in the case of 15% income tax on benefits for beneficiaries specified in art. 2 sec. 2 of the Act of 26 January 2023 on family foundations (art. 24q sec. 1 of the CIT Act);

But

– is possible in the case of 25% income tax on business activities exceeding the scope specified in Art. 5 of the Act of 26 January 2023 on family foundations (Art. 24r sec. 1 of the CIT Act).

Preferential CIT tax rate (15 %)

In accordance with Act 15%, CIT is collected from the following transferred or made available to entitled persons (beneficiaries):

1. Benefits provided for in the statute of the family foundation,
2. Property in connection with the dissolution of a family foundation, or
3. Benefits in the form of hidden profits.

Ad) A – The CIT tax liability on the part of a family foundation will arise only when the benefit is transferred to the beneficiaries, whether in cash or in the form of transfer of any property or provision of any service. The tax base for the foundation will then be the market value of the benefit transferred to the beneficiary. In such a case, the CIT rate is a flat rate and amounts to 15%.

The family foundation, as a payer, is also obliged to tax the benefit paid with personal income tax. (which will be discussed in the next article).

Ad) B – In the event of dissolution of the Family Foundation – the tax base will be the income corresponding to the value of the property issued in connection with the dissolution of the Foundation, reduced by the tax value of the property contributed by the Founder or Founders during the duration of the Foundation. Therefore, it does not take into account the increase in the value of the property contributed to the Foundation.

Ad) C – the tax exemption also does not apply to certain incomes generated by a family foundation, which are of the nature of so-called hidden profits, i.e. specific incomes of the family foundation generated in connection with transactions concluded with the beneficiary, the founder or entities associated with them. The full list of hidden profits in a family foundation is included in Article 24q section 1a of the CIT Act.

One of the more interesting examples are benefits for the beneficiary, founder or an entity associated with them for various types of services, including advisory, management and control. It turns out that if the founder is also a member of the board, the remuneration received by him in this respect will be taxed on the foundation's side at the rate of 15%, and will not be a cost reducing the tax base for this foundation, as such costs are not, as a rule, recognized by the foundation.

What about services provided to the foundation under, for example, a property management agreement? The regulations do not specifically mention paid property management services.

Unfortunately for taxpayers, in the individual interpretation issued on 13 February 2024 (ref. 0111-KDIB1-2.4010.693.2023.2.MK) regarding the above issues, the tax office clearly recognized that we are dealing here with a benefit in the form of hidden profits. The interpretation reads: "it should be stated that the remuneration for the provision of real estate rental management services paid to an associated company will constitute a benefit in the form of hidden profits within the meaning of Art. 24q sec. 1 item 3 in connection with Art. 24q sec. 1a item 3 letter a of the CIT Act and thus the Foundation will be obliged to pay tax on the above-mentioned benefit." The tax office was not convinced by the applicant's argument about the market remuneration for rental management services, which would not differ from the remuneration that would be due to an unrelated entity. Considering the conclusions from the issued interpretation, it is safer to purchase property management services from an unrelated entity.

Summary

Family foundations are a long-awaited solution for people running family businesses, ensuring effective asset management and financial security families over generations. Thanks to preferential tax regulations, a family foundation can enable optimal capital growth and protection of assets against risk.

If you are interested in how a family foundation can support your investment goals and build wealth for future generations, our the office will help you get through through the process of establishing a family foundation so that you can take full advantage of available tax preferences and build wealth for future generations.