The draft changes in the taxation of the Family Foundation raises doubts. One of the elements of change is taxation of rental revenues. The Ministry of Finance announced earlier that only short -term rental is to be taxed. However, the project goes much further and in a completely different direction.
– After the announcements of the ministry, everyone assumed that rental than short -term tax would be tax -free. Meanwhile, the project changes the rules by 180 degrees. He predicts that every housing rental is not allowed (i.e. taxed 19 % CIT) with the exception of the direct lease of the foundation to the consumer (B2C) – comments Michał Kwaśniewski, a lawyer at Quidea.
We explain what to do with taxation of the rental of apartments, apartments, apartments, as well as the rental of commercial real estate brought to the Family Foundation.
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Today there is a short -term rental dispute. What results from the project
Currently, the revenues of the Family Foundation from the lease are not taxed. Pursuant to the Act on the Family Foundation (Article 5 (1) point 2), the Foundation may conduct activities in the field of, among others rental of real estate. Therefore, rental income is exempt from tax. Only when the Foundation pays receivables to beneficiaries, then you have to pay tax (15 % CIT).
The tax authorities in the interpretations have so far been of the opinion that tax exemption does not include short -term rental revenues. The courts did not agree with this. Several judgments of voivodship administrative courts have already passed, which show that short -term rental is also exempt from tax, because the Act on the Family Foundation does not limit this exemption to long -term rental. We wrote about it in the article: short -term rental at the Family Foundation. Judgments are passed, but there will be a change in law
The Ministry of Finance decided to cut the disputes. And here is a surprise, because it is about renting apartments, but not only short -term. Taxed 19 percent CIT is to be revenues from the rental of residential real estate, including in particular from the provision of services related to accommodation (PKWiU 55). The exception is to apply to revenues from the rental of real estate rented directly by the Family Foundation only for housing purposes.
In addition, the burden of proof that the building, premises or their residential parts are rented directly exclusively for housing purposes, will rest at the Family Foundation.
Which in practice means taxation of revenues from the rental of residential real estate
Tax experts pay attention to the fact that The result of changes will be unevenness in the scope of taxation:
- Long -term rental of residential real estate will be exempt from tax, but long -lasting rental of housing for business activities – taxed;
- The short -term rental of residential real estate will be taxed, but for example revenues from each rental (including short -term) commercial premises (including in aparthotels, assuming that Aparthotel does not fit in a residential building, a building with a mixed function or a residential premises) will be exempt from tax;
- The long -term rental of residential real estate for natural persons who will meet the life needs in the apartment will be exempt from tax, but the rental of the same property for a natural person conducting business activity will be taxed.
The rental of apartments in the Family Foundation will be taxed higher than private rental and rental in companies
– demarcifications are incomprehensible – believes Paweł Turek, lawyer, tax advisor and partner at BTTP. – Why only the exemption would apply to long -term rental income for residential purposes? – the expert wonders.
However, Michał Kwasniewski indicates that in the justification to the project there are no arguments in favor of different treatment of long -term rental of apartments or residential buildings for housing and commercial purposes. – Similarly, in the case of indirect long -term rental, so when the Foundation signs a contract with an intermediary (B2B), and this apartment will rent a long -term physical person (end client) for housing purposes. It is not known why there is to be release in one case, and in the other taxation – comments Michał Kwasniewski.
Andrzej Nikończyk, tax advisor and partner at KNDP, in turn notes that, for example, aparthotels are not residential buildings, the subject of the lease are not residential premises, and the goal is not housing goals – therefore in In this case, there will be no taxation, regardless of meeting the additional conditions.
The expert also points out that such restrictions planned to impose MF on family foundations are not, for example, in the case of companies at the Estonian CIT. – If we want Changing the rules to protect the apartment market, it is worth trying a comprehensive solution, not focus on the family foundation – believes Andrzej Nikończyk. He also indicates that nobody explains why achieving short -term rental income is “bad” and should be taxable, since it increases domestic assets, the purchase of which will be taxable with sellers, and also increases municipal income due to increasing the property tax base.
Andrzej Nikończyk emphasizes that the designer somehow condemn family foundations. Private rental is subject to a lump sum of 8.5 percent/12.5 percent. without any restrictions. In companies, rent is taxed at 9/19 percent rates. or 0 percent If the company uses the Estonian CIT. – And the Family Foundation, according to the project, is to pay 19 percent. It can pay 9 percent if it does so by a subsidiary (which forces you to create unnecessary legal entities) – says Andrzej Nikończyk. Additionally There are no transitional provisions in the projectwhich means a punishment for the founders who believed in the Family Foundation and trusted the Ministry of Finance.
– There is also no way out of the Family Foundation after changing the rules, because the withdrawal of premises will be taxed at a rate of 15 percent. Cit (despite the lack of their sale), renewal of the five -year period for sale without tax and no purchase costs from the founders. The main disadvantage, however, is that this way of limiting the release of the Family Foundation is illogical and incomprehensible – comments Andrzej Nikończyk.
Author: Łukasz Zalewski, journalist of the Business Insider Polska Law Department
