I. Introduction
The Polish Family Foundation Act (Ustawa o fundacji rodzinnej, hereinafter “FFA”) introduced a novel legal vehicle for intergenerational wealth preservation, yet with this innovation came the concomitant need for robust fiscal oversight mechanisms. Article 84 of the FFA establishes the cornerstone of administrative control exercised by the National Revenue Administration (Krajowa Administracja Skarbowa, hereinafter “NRA”) over family foundations. This provision represents a deliberate legislative choice to create an autonomous legal basis for tax authority access to foundation records—an authority that could not be derived from pre-existing tax legislation.
The rationale underlying this regulatory framework is straightforward: to facilitate verification of compliance with public law obligations in matters of taxation, both by the foundation itself and by persons whose legal relationships with the foundation may give rise to tax liabilities. This article examines the scope, procedural requirements, and practical implications of this supervisory regime, offering guidance for foundation management boards navigating these compliance obligations.
II. The Scope of Mandated Disclosure
A. Enumerated Categories of Information
The information disclosure obligation encompasses three distinct categories of data, each warranting separate examination:
The Register of Beneficiaries. Tax authorities may demand complete access to this document, including information subject to confidentiality designations imposed by the founder. The requisite data encompasses identifying information (name or corporate designation, tax identification numbers), addresses, and particulars regarding beneficiary entitlements. Notably, the foundation’s duty of confidentiality under Article 55(4) of the FFA does not constitute a valid defense against such disclosure requests.
The Asset Inventory. This document contains information regarding property contributed to the foundation, including identification of contributing persons, the nature and value of individual assets, and current proportional interests attributable to each founder.
Information Regarding Distributions and Assets Transferred upon Dissolution. This category encompasses data concerning the nature, amount or value, timing, and method of performance. Significantly, this particular enumeration is non-exhaustive—the legislature employed the phrase “including” (w tym), thereby permitting requests for additional related information, such as identification of recipient beneficiaries.
B. The Closed Catalogue Doctrine
The first two categories constitute a numerus clausus—tax authorities possess no competence to expand their requests to encompass foundation documents beyond those expressly enumerated in the statute. This limitation derives from the constitutional principle of legality enshrined in Article 7 of the Polish Constitution, which prohibits expansive interpretation of competence-granting provisions. Accordingly, any attempt by tax authorities to demand documents or information falling outside the statutory catalogue would exceed their lawful authority and provide grounds for challenge.
III. Entities Authorized to Issue Information Requests
Any organ of the NRA may issue a disclosure demand, provided such request serves the fulfillment of that organ’s statutory functions. Authorized entities thus include: the Minister of Finance, the Head of the NRA, the Director of National Tax Information, directors of tax administration chambers, heads of tax offices, and heads of customs and tax offices.
In practice, heads of local tax offices most frequently exercise this authority in connection with verification procedures or preparatory activities preceding formal tax audits.
IV. Procedural Requirements and Form
A. The Administrative Order Requirement
The demand must take the form of an administrative order (postanowienie) containing a statement of reasons that articulates the circumstances necessitating acquisition of the specific information sought. This constitutes a substantive requirement—a perfunctory invocation of “statutory duties” fails to satisfy the standard prescribed by Article 45 of the NRA Act.
B. Available Remedies
The foundation possesses the right to file an interlocutory appeal (zażalenie) against the order. Cognizable grounds for challenge include, inter alia: demands for information exceeding the statutory catalogue; absence of a nexus between the requested data and the authority’s legitimate functions; imposition of an unreasonably abbreviated compliance deadline; or violation of the proportionality principle.
V. Compliance Deadlines
The statute prescribes a minimum period of fourteen days from service of the demand. The issuing authority should, however, calibrate the deadline to reflect the scope and complexity of the information requested. Imposition of the minimum period while simultaneously demanding extensive historical data may constitute grounds for interlocutory appeal.
VI. Temporal Limitations on the Disclosure Obligation
A. The Absence of Express Statutory Limits
The FFA does not specify a maximum historical period for which information may be demanded. In principle, a foundation could be required to produce records from the date of its establishment. In practice, however, two factors circumscribe the permissible temporal scope of such requests.
B. Functional Nexus Requirement
First, the information must bear a functional relationship to the authority’s statutory mandate. Demands for information pertaining to periods for which tax liabilities have become time-barred cannot plausibly serve the fulfillment of NRA functions and thus exceed lawful authority.
C. Constitutional Proportionality
Second, the proportionality principle embodied in Article 31(3) of the Polish Constitution operates as an independent constraint. Demands encompassing multi-year historical periods may be challenged as measures disproportionately burdensome relative to the legitimate objectives of fiscal oversight.
VII. Archival Obligations
The statutory framework implicitly requires foundations to maintain historical records, including successive versions of the beneficiary register. Management boards should implement procedures ensuring documentary continuity, notwithstanding subsequent modifications to individual data points.
A significant qualification applies, however: personal data lawfully deleted pursuant to Article 54(2), second sentence, of the FFA—as no longer necessary for safeguarding beneficiary rights or fulfilling statutory obligations—need not be produced, and the absence of such data cannot give rise to sanctions.
VIII. Consequences of Non-Compliance
A. Criminal Rather Than Administrative Sanctions
Article 128 of the FFA prescribes sanctions exclusively of a criminal character (fines calculated in daily rates), rather than administrative penalties:
- Failure to comply with the information obligation: minimum 240 daily rates
- Obstruction or frustration of compliance: minimum 240 daily rates
- Provision of false information: minimum 360 daily rates
B. Personal Liability
Liability attaches to natural persons authorized to conduct foundation affairs or exercise representative functions—namely, management board members, liquidators, and commercial proxies (prokurenci).
IX. Practical Guidance for Foundation Management
Upon receipt of an NRA demand, the management board should undertake a preliminary assessment addressing the following inquiries: whether the order contains adequate reasoning; whether the requested information falls within the statutory catalogue; whether the designated deadline permits realistic compliance; and whether the demand encompasses information already accessible to the authority from other sources.
Where the propriety or scope of the demand occasions doubt, the foundation may exercise its right of interlocutory appeal. It bears emphasis, however, that filing an appeal does not ipso facto suspend the compliance obligation absent a contrary determination by the administrative authority or court.
X. Conclusion
Oversight proceedings under Article 84 of the FFA frequently serve as a precursor to more extensive investigative measures. Foundation management should accordingly treat each such demand as an indication of potential fiscal authority interest and prepare appropriately for possible subsequent control activities. Prudent compliance, combined with vigilant protection of the foundation’s procedural rights, represents the optimal approach to navigating this regulatory terrain.
