The Family Foundation and Its Liechtenstein Predecessor
How to Safely Repatriate Family Wealth From a Foreign Foundation to a Polish FR
Protective Opinion of Head of KAS, 7 November 2025 (DKP16.8082.6.2025)
Robert Nogacki | Kancelaria Prawna Skarbiec
Introduction
Protective opinions (opinie zabezpieczające) are among the rarest instruments in Polish tax law—a handful annually, PLN 20,000 each, delineating the boundary between permissible planning and GAAR abuse. The opinion of 7 November 2025 is precedential: it confirms that a Polish entrepreneur who historically secured family wealth in a Liechtenstein foundation may safely transfer management and control of that wealth to a Polish family foundation—without triggering the GAAR clause.
This matters for anyone contemplating a similar “return home” with a foreign succession structure. Until now, there was no definitive ruling on whether such a transfer would be treated as an abuse of law.
The Structure Under Review
The applicant held a Liechtenstein foundation (FL) that was a shareholder in a Polish holding company. The FL was established at a time when Polish law offered no succession instrument comparable to foreign private foundations—and this historical context proved decisive.
The planned sequence comprised: establishing a Polish family foundation (FR) with the applicant as founder and beneficiary; voluntary share redemption without consideration of the FL’s shares in the holding company; subscription by the FR for new shares in the same holding company; operation of the FR within the scope of permitted activity and payment of benefits to beneficiaries.
Critically, the transfer mechanism involved no direct legal relationship between the two foundations. The FL does not donate to the FR, does not sell shares to the FR, and is not a beneficiary of the FR. The transfer operates through the holding company: the FL’s shares are redeemed (extinguished), and the FR subscribes for newly issued shares. After this operation, the FL loses its entitlement to dividends, and the FR becomes the sole vehicle managing the family’s wealth.
The Ruling
The Head of KAS issued a protective opinion: the transactions do not constitute tax avoidance. The authority examined all conditions of Article 119a § 1 of the Tax Ordinance and found that while tax advantages exist and their achievement was one of the purposes, the remaining conditions are not met cumulatively: the manner of action is not artificial, and the tax advantages are not contrary to the purpose of the tax statutes.
Key elements of the reasoning: the objectives are economically justified—asset protection, succession, prevention of fragmentation, repatriation of management to the founder’s country of residence. The Liechtenstein foundation served the same function but was established before Poland offered a comparable instrument. Now that the FR exists, the foreign element “has become redundant”—the authority’s own formulation. The method—redemption without consideration plus new share issuance—is rational and proportionate to the economic objective.
Analysis
1. A Repatriation Precedent
The opinion establishes a precedent for a specific situation: safely transferring asset management from a foreign foundation to a Polish FR. The Head of KAS repeatedly emphasises that the applicant’s purpose is “transferring management and control over family wealth (the entire holding) from Liechtenstein to Poland.” The authority found this objective consistent with legislative intent—the explanatory memorandum to the FR Act expressly noted that Polish entrepreneurs “sometimes decide to transfer wealth to foreign foundations or trusts,” leading to “asset emigration,” and that the FR was designed to reverse this trend.
This is not an opinion sanctioning the permanent maintenance of a hybrid two-foundation structure. It is an opinion sanctioning the exit from a foreign structure in favour of a Polish FR.
2. The CFC Dimension—Present but Unprotected
Contrary to what one might assume, the opinion does not pass over CFC in silence. The applicant himself declared that the FL “may be classified as his controlled foreign company under Article 30f(3)(3)-(5) of the PIT Act.” The Head of KAS accepted this assumption and analysed the tax advantages in the CFC context: the absence of any consideration received by the FL from the share redemption means no taxable base for CFC purposes.
The critical distinction: a protective opinion shields against GAAR (Article 119a of the Tax Ordinance). It does not shield against CFC classification (Article 30f PIT)—these are two separate legal instruments. For readers planning similar structures, the signal is clear: even a favourable protective opinion does not relieve the obligation to conduct a CFC analysis for every foreign element.
As I discussed in the article on whether a Maltese private foundation makes sense for a Polish entrepreneur, a foreign foundation held by a Polish tax resident will, as a rule, constitute a controlled foreign company under Article 30f—with automatic 19% CFC taxation, unless the structure meets the genuine economic activity test. The protective opinion concerning the FL does not resolve this question, but the context is telling: the applicant is repatriating assets to Poland, not building a permanent offshore structure.
3. Why a Donation From FL to FR Was Not an Option
The Head of KAS endorsed the applicant’s argument that a donation of shares from the FL to the FR is not a “reasonable alternative.” A donation would mean the FR’s assets originated from a party other than the founder—destroying the proportion under Article 27(4) of the FR Act and, consequently, the PIT exemption for benefits paid to beneficiaries. The result: triple taxation (operating company → FR at 15% CIT on distribution → beneficiary with PIT), whereas the entire FR concept is built on double taxation approximating the market standard.
The authority found that imposing the donation route as the only alternative would constitute a “penalty” for having previously established the FL—a penalty for securing family wealth before Poland offered its own succession vehicle. This is an important axiological signal: the Polish tax authorities do not penalise historical use of foreign structures when repatriation proceeds rationally.
4. The Boundaries of the Precedent
The opinion concerns a specific set of facts and should not be extrapolated to every structure combining a Polish FR with a foreign foundation. The Head of KAS did not articulate a general principle of “functional complementarity” between two coexisting foundations. The ruling is narrower: transferring management from the FL to the FR is safe where the FL predates the FR Act and the foreign element has become redundant.
The authority itself identified structures that would not pass the GAAR test: a foundation established solely to pass 100% of dividends through to the founder; contribution of shares to an FR followed by their sale, dissolution of the foundation, and distribution of all proceeds to the founder. In other words: an FR without succession substance, used as a pure tax vehicle, is not protected.
This aligns with the general principle I described in the context of the Maltese private foundation: a foreign structure has economic sense only when each element serves its own, non-duplicated function. The Polish FR is the first and most natural instrument for a Polish tax resident. Foreign structures—whether Liechtenstein, Malta, Jersey, or DIFC—come into play only where genuine non-tax considerations exist: emigration, foreign assets that cannot be effectively managed from Poland, an international family with residents in multiple jurisdictions.
Conclusions
The opinion of 7 November 2025 establishes a precedent: a Polish entrepreneur who historically secured wealth in a foreign foundation may safely transfer management to a Polish FR—via redemption of the foreign foundation’s shares and subscription of new shares by the FR. Conditions: a genuine economic purpose (succession, protection, repatriation), a rational method (not artificial), and tax advantages consistent with the purposes of the relevant statutes.
A protective opinion is a purpose-specific shield against GAAR, not a universal safe harbour. It does not protect against CFC classification, does not extend to other factual scenarios, and does not sanction the indefinite maintenance of foreign structures alongside a Polish FR without economic justification.
For an entrepreneur planning succession in 2025, the hierarchy is clear: the Polish family foundation as the foundation stone; foreign elements only where driven by genuine non-tax considerations; and where a foreign element historically exists—the protective opinion charts a safe path home.
See Also in This Series
→ Does a Maltese Private Foundation Make Sense for a Polish Entrepreneur?
→ The Cook Islands Trust and the Polish Tax Authorities
→ One Percent Ownership, One Hundred Percent Taxation
Author: Robert Nogacki — attorney-at-law (radca prawny), managing partner of Skarbiec Legal, a Warsaw-based firm specializing in tax law, international tax planning, and holding structures.
This article is for informational and educational purposes only and does not constitute legal or tax advice.
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
