Fundacja rodzinna - fundator i beneficjent
Can a foreigner (a person without Polish citizenship) establish a Polish family foundation?
In principle, the founder, i.e. the founder of a family foundation, can be any natural person who has full legal capacity to perform legal acts Therefore, the founder can also be a foreigner, provided he/she has full legal capacity to perform legal acts In accordance with the provisions of the Private International Law Act (i.e. Journal of Laws of 2023, item 503), the legal capacity of an individual is established on the basis of his or her native law. Furthermore, as stipulated by the aforementioned Act, if a natural person performs a legal act in the scope of his or her business, it is sufficient that he or she has the capacity to perform this act according to the law of the country in which the business is conducted
Is the founder liable for the liabilities of the family foundation?
The founder of a family foundation is not liable for its liabilities, both civil and tax, but the family foundation may be liable for its liabilities (question: Are the assets contributed to the family foundation safe?).
The founder may be liable for the foundation’s tax liabilities if he or she is also a member of the foundation’s board of directors (question: What is the liability of the members of the board of directors of a family foundation?)
Is the beneficiary liable for the liabilities of the family foundation?
The beneficiary of a family foundation is not liable for its liabilities, either civil or tax. A family foundation is a separate legal entity, which means that its assets are separate from those of its beneficiaries. The foundation is liable for liabilities related to its business activities only with its assets.
A beneficiary may be liable for the foundation’s tax obligations if he or she is also a member of the foundation’s board (question: What is the liability of the board members of a family foundation?)
What liability do the board members of a family foundation have?
The board members of a family foundation are not liable for the civil liabilities of the foundation, e.g. for invoices issued to the foundation related to its business activities. Thus, a contractor of a family foundation cannot claim payment directly from a member of the family foundation’s board.
Instead, the board members of the family foundation are liable for its tax arrears. For example, if the foundation has carried out business activities and is in arrears with VAT, the tax office may impose the obligation to pay this tax on the members of the board and initiate enforcement proceedings against them. The legal basis in this respect is Article 116a of the Tax Ordinance. The liability covers not only tax arrears, but also interest on arrears, costs of enforcement proceedings and other receivables specified in Article 107 § 2 of the Tax Ordinance. The liability of management board members is joint and several, which means that each management board member may be obliged to cover the entirety of the arrears.
In addition, members of the management board are liable for damages caused to the family foundation if their acts or omissions were contrary to the law or the provisions of the articles of association, unless they are not at fault. In order to hold a board member liable, the family foundation must prove that the damage was caused by the board member’s act or omission and that there is a causal link between the act/ omission and the damage. The board member will avoid liability if he/she can show that he/she is not at fault, in particular that he/she took decisions within the limits of reasonable business risk and on the basis of adequate information (Business Judgement Rule).
Can a founder’s transfer of assets to a family foundation be challenged by means of a so-called pauliacal complaint?
It may happen that a founder, after the establishment of the foundation and the contribution of assets to it, incurs new obligations which he does not fulfil. A family foundation is not liable for such obligations (except for maintenance), but creditors may avail themselves of a so-called pauliacal complaint if the founder transfers his or her assets to the foundation to the detriment of creditors. We speak of harming creditors when, as a result of a certain action, the founder has become insolvent or has become insolvent to a higher degree than he was before the action took place. In other words, he or she has disposed of property that could have served to satisfy creditors. At this point, it should be clarified that the property of a family foundation can have only four sources of origin: property contributed by the founder to the foundation’s initial capital, a donation, an inheritance and property acquired from funds obtained from the foundation’s business activities. A founder who wishes to transfer property to the foundation will use a donation for this purpose.
Pursuant to Article 527 of the Civil Code, when, as a result of a legal action of the debtor (founder) carried out to the detriment of creditors, a third party (family foundation) obtained a material benefit, each of the creditors may demand that this action be declared ineffective in relation to him, if the debtor acted with the awareness of harming the creditors and the third party knew about it or with due diligence could have found out about it. Moreover, in the case of a gratuitous act (e.g. a donation), there will generally be a presumption that the transfer of property was made to the detriment of creditors. In practice, the so-called pauliańska complaint may be an effective tool to protect the funder’s creditors.