POLAND Law and Practice Contributed by: Piotr Augustyniak, Nash Concept Ltd
position confirmed by administrative practice. Com - bined with the citizenship-based scope of the tax described in 1.4 Pre-Immigration and Exit Planning , this makes the sequencing of gifts, the situs of assets and the citizenship status of donees matters requiring examination in every international family; in practice, exposure is managed by the timing of transfers, by the use of the immediate-family exemption where its conditions can be satisfied, and by holding foreign assets through structures outside the scope of the transfer tax. 2.3 Forced Heirship Laws Polish law protects descendants, the spouse and – in the absence of descendants – the parents of the deceased through the zachowek , a monetary claim rather than a right to specific assets. The claim amounts to one half of the value of the claimant’s intestate share, or two thirds where the claimant is a minor or permanently incapable of work, and is directed first against the heirs and subsidiarily against donees. Lifetime gifts are added back to the notional estate; gifts to persons who are neither heirs nor enti - tled to the zachowek are disregarded once ten years have passed, and the same ten-year cut-off applies to property contributed to a family foundation. Consensual arrangements are available and were materially strengthened in 2023. A prospective heir may renounce the succession, or the zachowek alone, by notarial agreement with the future deceased; a claimant may agree to instalments, and the court may defer payment, spread it over time or, in exceptional circumstances, reduce the claim, having regard in par - ticular to the position of family businesses. Benefits received from the deceased – including distributions from a family foundation – are credited against the claim. Outright deprivation of the zachowek (disin - heritance) remains possible only on narrow statu - tory grounds, such as persistent grave misconduct
strictly personal items remain separate. Each spouse manages the common property, but the consent of the other is required for the most significant acts, notably dispositions of real estate and of enterprises; a trans - fer of such property by one spouse alone is ineffective without confirmation. Spouses may depart from the statutory regime by a marital property agreement concluded in notarial form, before or during the marriage, extending or limiting the community, adopting full separation, or adopting separation with equalisation of accrued gains on the German model. Such agreements are binding without judicial review of their substantive fairness, although they can be invoked against a third party only if the third party knew of them. Poland does not participate in the EU regulation on matrimonial property regimes; under domestic conflict rules, spouses may subject their property relations to the law of the nationality or habitual residence of either of them, which allows foreign prenuptial agreements to be given effect if that choice is properly made. 2.5 Transfer of Property Gratuitous transfers do not produce a step-up to market value. An heir succeeds to the tax position of the deceased: on a later sale of inherited real estate, the five-year exemption period is counted from the deceased’s acquisition, and in the case of inherited securities, the expenses incurred by the deceased are deductible by the heir. A donee, by contrast, begins the holding periods afresh and, having provided no consideration, has in principle no acquisition cost, although expenditures on the asset and the transfer tax actually paid increase the deductible base. The transfer itself does not trigger capital gains taxa - tion of the transferor: donation and death are not reali - sation events for income tax purposes. Assets con - tributed to a family foundation are likewise received on a continuity basis, the foundation succeeding to the founder’s historical values; within the foundation’s permitted activity the point is largely academic, since a disposal by the foundation bears no current tax, but it becomes relevant where assets leave the exempt sphere.
towards the deceased. 2.4 Marital Property
The statutory regime is a community of acquisitions arising by operation of law upon marriage: property acquired during the marriage by either spouse is con - sidered joint, while pre-marital property, inheritances and gifts (unless the donor provides otherwise) and
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