5780447503

210 HlodiJmen Nykiel. Ziemowit Kukulski

As a result. also tax Icgislation providing joint taxation of spooses is applicable only to marriagc within thc meaning of Art. 18 of thc Cora-titution. Staying in an unmarried cohabitation does not havc cflccts within thc field of tax law. An cxccption to this rulc is providcd in Art. III § 3 of the General Tax Law. Aocording to this provision a person wbo stays with a Lucpaycr in unmarried cohabitation (concubinc) is treated as a member of taxpayer's family and is rcsponsiblc for taxpaycr’s tax duc. This mcans that in casc of permanent coopcration with a taxpaycr in his/her business activity. a concubinc is rcsponsiblc solitarily with his/her wholc propeny for taxpayer's tax obligations conncctcd with this activity which cmcrgcd within thc period of cooperation. The rcsponsibility of concubine is limited to the value of bencfits rcccivcd from taxpuycr's activity.

The joint taxation of spouses is rcgulatcd in Art. 6 and 6a of thc Pcrsonal Incomc Tax Act. As a rulc, thc incomcs of spouses arc taxcd scparatcly. .Spouses may howevcr be laxcd jointly on thc sum of thdr incomc, after a dcduction separately from thc incomc of cach spouse of cxpenditurcs listed in Art. 26 of thc Pcrsonal Incomc Tax Act. For spouses in order to be taxed jointly thc following conditions must be met:

1)    Both spouses must bc resident in Poland,

2)    They must have becn married during thc entire lax year,

3)    Thcy have to bc in a common propeny marriagc.

4)    Thcy havc to file a joint tax return.

If conditions mentioned above arc met, tax is assesscd in thc namc of both spouses and is cqual to twicc thc amount of tax oomputed with respect to half of thc spouses' aggrcgatc incomc.

The joint taxntion of spouses does not apply. whcrc a sponse pays 19% flat-rate tax on income from business activity or lump-sum-fax.

Therc is a lot of controvcrsy around thc impossibility of application of joint laxalion of spouses where spouses met conditions mentioned above, but one of ihcm died beforc filing a joint tax return. The Cons-titutional Tribunal in its judgmenl of 4* of May 2004 (K 8/03) found Art. 6 sec 2 of Pcrsonal Incomc Tax Aa incompatible with thc cons-titutional principk of dcmocratic State of law and prinaplc of care and protcction by State ovcr marriagc and family in that part in which it prohibits thc joint taxation of spouses after a dcath of one of them. As a result of this judgmenl a new Art. 6a was introduccd in thc Persowi Incomc Tax Aa. according to which spouses in a comraunity of propeny marriagc may opt for joint tax return cvcn if one of them had diod beforc the joincd tax return was filed, if:

1) thcy were married beforc thc beginning of thc tax year, and one of them died during the tax year.

2) they were marncd during thc wholc tax year, and one of them died afłer the tax year but beforc thc joint tax return was filcd.

Another pro*family provision of Pcrsonal Incomc Tax Act conccrns thc tax treatment of persons solitarily bringing up juvcnilc childrcn.

As regards persons who solitarily bring up childrcn, thc tax is cqual to twicc the amount of tax computed with respcct to half of thc pcrson's incomc. This melhod of calculation of tax does not npply. w herc such a person pays 19% flat-rate iax on incomc from business activity or her/his incomc is taxcd at flat-rate.

In thc Pcrsonal Incomc Tax Act thcrc arc excmptions refering to tax-paycr’s family status, such as thc ones conccrning scveral types of social pensions and bcncfits (funcral dole, benefits for orphans etc.).

CeTtain reliefs and benefits depending on taxpaycr’s family status cxist also in other taxcs, i.c. inhcritance and gift tax. Taxpaycrs of inhcritancc and gift tax arc dassified into following thrcc categories, according to thc proximity of thc relationship bctwccn thc dcccascd/donor and thc bcncficiary/doncc. Also rates of this tax depend on under which catcgory thc taxpaycr falls.

l he following categories of taxpaycrs may bc distinguished:

1.    Catcgory I: spouses, childrcn (also udopted and stepchildren), sons and daughtcrvin-law, parents, brothers and sisters;

2.    Catcgory II: nieces and nephews. brothers and sisters of parents, childrcn and spouses of other spouse’s child, spouses of brothers and sisters and brothers and sisters of spouses, spouses of other dcsccndants,

3.    Catcgory III: olhers.

The tax frcc amount is the following:

1)    9637 PLN for Catcgory 1;

2)    7276 PLN for Catcgory II;

3)    4902 PLN for Catcgory 111.

The amount of the tax due depends also on catcgory to which the person acquiring goods or propeny rights bdongs.

Several reliefs in inhcritancc and gift tax depend on taxpaycrs’ family status łikc for examp!e relief for received apartments and dwelling houses. Kedpients of apartments and dwelling houses arc tax cxpcmt up to thc valuc which corrcsponds to 110 m^} of thc surfacc of the dwelling, if they:

1.    fali under Catcgory I and have rcccivcd an apartment or a dwelling housc as inhcritancc or gift;

2.    fali under Catcgory II and havc rcccivcd an apartment or a dwelling housc as inhcritancc;

3.    fali under Catcgory 111, havc received an apartment or a dwelling housc as inheritance and took carc of thc dcccased at least for 2 ycars on thc basis of an agreement signed by such a person and thc dcccascd before an organ of local community.