Introduction
The asset registry (spis mienia) constitutes, alongside the charter, one of the two foundational documents of every Polish family foundation. Its proper preparation and ongoing maintenance bear directly upon the tax treatment of distributions to beneficiaries and the allocation of assets upon eventual dissolution. This analysis examines the statutory framework governing the asset registry, its substantive requirements, and the practical implications for foundation governance.
I. Nature and Function of the Asset Registry
A. Distinguishing the Registry from a General Inventory
The asset registry does not function as a comprehensive inventory of the family foundation’s estate. Rather, this instrument records exclusively those assets contributed without consideration—whether as initial capital contributions to the founding fund, subsequent donations, or testamentary dispositions. Assets acquired by the foundation through arms-length transactions, even where funded by dividends derived from contributed capital, fall outside the registry’s scope.
The registry’s primary purpose lies in establishing the proportionate interests attributable to each founder and to the foundation itself. These proportions prove determinative in calculating the scope of income tax exemptions available to beneficiaries within the so-called “zero group” of close family members.
B. Relationship to Tax Consequences
The Polish legislature elected to tax distributions from family foundations to beneficiaries with reference to the character of the relationship between the beneficiary and the founder or other persons who contributed assets gratuitously. Consequently, distributions corresponding to the proportion recorded in the registry pursuant to Article 27(4) of the Family Foundation Act qualify for exemption from personal income tax where the beneficiary is either the founder or a close person within the meaning of Article 4a(1) of the Inheritance and Gift Tax Act.
For beneficiaries falling within Groups I and II under inheritance tax classifications, a reduced rate of ten percent applies; those in Group III face a fifteen percent rate. This statutory scheme renders the registry’s accuracy essential to proper tax compliance.
II. Substantive Elements of the Registry
A. Required Contents
Each entry in the asset registry must contain four essential elements: identification of the contributing party, specification of the type of property right contributed, fair market value determined as of the date and circumstances of contribution, and the tax basis of that asset.
The tax basis represents the amount not previously recognized as a deductible expense that would have constituted such an expense had the contributor disposed of the asset immediately prior to contribution. This figure may not exceed fair market value.
B. Form Requirements
The statute mandates written form for the asset registry. Although Article 114 of the Act does not expressly require submission of the registry with the registration application, practice before the registry courts has established that the founder’s initial registry constitutes a mandatory attachment to the founding documentation.
Certain commentators have questioned whether documentary form—as distinct from written form with a handwritten signature—would satisfy the statutory requirement. The better view holds that registration practice demands a document bearing the founder’s original signature, with subsequent updates signed by management board members in accordance with applicable representation rules.
III. Preparation of the Initial Registry
A. The Founder’s Obligation
Responsibility for preparing the initial asset registry rests with the founder. This document comes into existence contemporaneously with the contribution of assets to cover the founding fund and should accompany the founding act or testament establishing the foundation.
B. Testamentary Foundations
Where a foundation is established by testament, the registry prepared by the founder during his or her lifetime may not reflect the estate’s condition at the time the succession opens. In such circumstances, the management board must promptly verify the registry’s accuracy and make necessary corrections to ensure compliance with founding fund requirements.
IV. The Concept of “Contributed Assets”
A. Statutory Categories
The Act employs the term “contribution of assets” (wniesienie mienia) in three primary contexts: coverage of the founding fund, donation, and inheritance. A purposive interpretation, however, compels extension of this concept to encompass other forms of gratuitous transfer—including specific bequests (zapis windykacyjny), ordinary legacies (zapis zwykły), life insurance proceeds, and partially gratuitous transactions to the extent of the gratuitous element.
B. Attribution Rules for Close Family Members
Assets contributed by a founder’s spouse, descendants, ascendants, or siblings receive treatment equivalent to assets contributed by the founder personally. This attribution rule enhances the tax benefits available to zero-group beneficiaries by ensuring that a larger proportion of distributions qualifies for exemption.
V. Registry Updates by the Management Board
A. Timing of Updates
Following registration, responsibility for maintaining registry accuracy transfers to the management board. The statute prescribes no fixed update schedule—while legislative history referenced year-end updates, the enacted provisions impose no such periodicity.
Updates should occur promptly following any event resulting in asset contribution to the foundation. Failure to discharge this obligation, where resulting in erroneous proportion calculations and consequent tax liability errors, exposes the board to potential liability.
B. Scope of Updates
Disposition, exchange, consumption, or damage of a contributed asset does not occasion removal of that entry from the registry. The update mechanism operates solely through addition of new entries for newly contributed assets and recalculation of the resulting proportions.
VI. Modification of the Founding Fund
A. The Doctrinal Controversy
Whether the founding fund may be increased following registration remains contested. Arguments against such modification invoke legislative history emphasizing the “initial” character of the founder’s capital contribution and the absence of express statutory procedures analogous to those governing share capital increases in commercial companies.
The more permissive view identifies Article 26 of the Act as providing the competence norm authorizing charter amendments, including modification of the founding fund amount specified therein. No express prohibition appears in the statute, and the charter—not the founding act—determines the fund’s value.
B. Temporal Limitations
Regardless of how this controversy resolves, modification of the founding fund remains possible only during the founder’s lifetime, as only the founder possesses authority to contribute assets for its coverage.
VII. Valuation Methodology
A. Market Value Standard
The statute does not specify whether book values or market values should populate the registry. Given the registry’s purposes—demonstrating coverage of the founding fund and establishing proportions for tax calculations—market values represent the appropriate measure.
B. Determination of Fair Market Value
Fair market value follows the principles established under corporate income tax law: the price corresponding to transactions involving property, services, or rights of the same type and kind, taking into account condition, depreciation, and temporal and geographic circumstances of availability.
VIII. Confidentiality and Disclosure
A. Internal Document Status
The asset registry constitutes an internal foundation document. Founders may designate it as confidential in the charter. Such confidentiality provisions do not, however, override the disclosure obligation established by Article 84 of the Act.
B. Mandatory Disclosure to Tax Authorities
Upon demand from the National Revenue Administration, the foundation must transmit the registry within a period specified by the authority, which may not be shorter than fourteen days from service of the demand. This obligation applies notwithstanding any charter-based confidentiality provisions.
Updated registries need not be filed with the foundation registry—only the initial registry prepared by the founder requires submission at registration.
IX. Consequences of Deficient Registry Maintenance
Errors in the asset registry translate directly into miscalculated proportions governing distribution taxation. A beneficiary entitled to exemption as a zero-group member of a founder may face unexpected tax liability where that founder’s proportionate interest has been understated.
The management board bears responsibility for culpable errors in registry maintenance that result in incorrect tax determinations. This exposure to liability counsels particular diligence in documenting every gratuitous contribution to the foundation and in maintaining accurate proportion calculations throughout the foundation’s existence.
Conclusion
The asset registry serves as a critical governance instrument whose accuracy determines the tax efficiency of the family foundation structure. Practitioners establishing and advising family foundations must attend carefully to proper registry preparation, ensure systematic updating protocols, and maintain awareness of the proportionate interest calculations that flow from each gratuitous contribution. The consequences of deficient registry maintenance—both in terms of beneficiary tax liability and management board exposure—underscore the document’s significance within the broader architecture of Polish family foundation law.
