Divorce and separation in Poland

Jurisprudence in matters of separation

III. In the light of the right of donations and inheritances, separated spouses are treated unchanged

Judgment

Supreme Administrative Court in Warsaw

of April 23, 2008

II FSK 373/07

1. The spouses who are separated from each other must be subject to the same taxation rules for gifts between them as are applicable to the spouses.

2. Until the consequences of the marriage concluded pursuant to the provision of art. 1 § 1 k.r.o., the spouses are subject to settlement for inheritance and donation tax according to the rules provided for this tax group.

LEX No. 485167

485167

Dz.U.2009.93.768: art. 14 par. 1 point 3

Journal of Laws 1964.9.59: art. 1; Art. 17; Art. 55; Art. 56; Art. 61 (4)

Composition

Chairman: Judge of the Supreme Administrative Court Andrzej Grzelak.

NSA judges: Jan Rudowski (spr.), Jerzy Rypina.

Protokolant: Katarzyna Pawłowska.

Sentence

Supreme Administrative Court after hearing on April 23, 2008 at a hearing in the Financial Chamber, a cassation complaint by the Director of the Tax Chamber in Poznań against the judgment of the Provincial Administrative Court in Poznań of November 9, 2006 Ref. act I SA / After 811/06 in the case from the complaint of Ewa B. to the decision of the Director of the Tax Chamber in Poznań of June 20, 2006 regarding the tax liability of the payer due to unpaid inheritance tax and donations:

1. dismisses the cassation complaint,

2. Appeals from the Director of the Tax Chamber in Poznań to Ewa B. the amount of 1,800 (one thousand eight hundred) zlotys as reimbursement of the costs of cassation proceedings.

Factual justification

By the contested judgment of 9 November 2006, the Voivodship Administrative Court in Poznań, after examining Ewa B.'s complaint, revoked the decision of the Director of the Tax Chamber in Poznań of June 20, 2006 and the decision of the Head of the Tax Office in Poznań of March 20, 2006 on the taxpayer's liability for unpaid inheritance and donation tax. In the justification of the judgment, describing the current course of the proceedings, it was clarified that by the decision of 20 March 2006, the Head of the Tax Office, acting pursuant to art. 30 § 1 and § 4 of the Act of August 29, 1997. Tax Ordinance (Journal of Laws of 2005, No. 8, item 60), ruled on the liability of the payer, notary public Ewa B due to the unpaid tax on the contract of donation drawn up in the form of a notarial deed on December 20, 2005, and determined the amount of unpaid and unpaid tax for the amount of PLN 17,786.00.

In the explanatory memorandum of the decision, the tax authority explained that the contract of 20 December 2005, prepared in the form of a notarial deed, Andrzej J., gave Marzenie J. - wife, with whom he remains separated - property located in K. at ul. S. worth PLN 100,000.00. Notary Public Ewa B. did not count or collect donation tax because she qualified the buyer for the first tax group and applied the relief provided for in art. 16 of the Act of 28 July 1983 on inheritance and donation tax (consolidated text Journal of Laws of 2004 No. 142, item 1514, as amended) - p.p.

He indicated that in the light of art. 61 of the 4th Act of February 25, 1964 - the Family and Guardianship Code (Journal of Laws No. 9, item 59, as amended) - hereinafter referred to as the abbreviated reference date. - spouses for whom the court has ruled to be separated should be treated as the spouses against whom the court has ordered a divorce with all consequences, unless the law provides otherwise. In his opinion, the Law on Inheritance and Donation Tax does not provide for an exception to this rule, as well as the Family and Guardianship Code. In connection with the above, the notary - as a payer (Article 18 paragraph 1 of the Act on Public Procurement Law) - should treat the donation parties as persons included in the third tax group within the meaning of the Inheritance and Donation Tax Act and charge a donation tax of PLN 17,786.00. Since Ewa B. did not fulfill this obligation, it was necessary to rule on her liability as a payer.

By decision of 20 June 2006, the Director of the Tax Chamber in Poznań, after examining the appeal of Ewa B., upheld the decision of the first instance authority.

The appeal body shared the position of the tax authority of the first instance that separation between spouses essentially results in effects such as divorce. He indicated that divorce, in accordance with art. 54 § 1 k.r.io. causes property separation between spouses. Thus, from the property of Andrzej J., the subject of the donation went to a separate property of Marzena J., and therefore it was justified to classify them into the third tax group, just like divorced spouses, as also indicated in the provision of art. 935 of the Act of 23 April 1964. The Civil Code (Journal of Laws No. 16, item 93, as amended) hereinafter referred to as the abbreviated version of the code of k.c. - according to which the provisions on appointment to inheritance from the Act do not apply to the spouse of the testator being separated, as well as art. 940 § 1 k.c., which excludes from inheritance of the spouse, if the testator requested a divorce or separation from his fault, and the request was justified.

In the complaint against the decision of the Director of the Tax Office of 20 Junein 2006, Ewa B., claiming that it should be repealed, alleged violation of substantive law, i.e. art. 14 par. 3 points 1 and 3 u.p.s.d. in connection with art. 614 § 1 k.r.io. in connection with art. 2, art. 7, art. 84 and art. 217 of the Constitution of the Republic of Poland and art. 29 § 2 point 4, art. 110 § 3 and art. 111 of the Tax Ordinance by their erroneous interpretation and a flawed acceptance that spouses who are separated are not spouses within the meaning of art. 14 par. 3 point 1 u.p.s.d. and are not included in the first tax group and the rules of procedure, i.e. art. 233 § 1 point 1 in connection with art. 30 § 4, art. 51 § 1 and 3 of the Tax Ordinance and in connection with art. 15 para. 1 and 1b para. 1 point 1 u.p.s.d. by defective maintenance of the first instance decision.

The Provincial Administrative Court shared the applicant's allegations and acted on the basis of art. 145 § 1 point 1 lit. and the Act of 30 August 2002 - Law on Proceedings before Administrative Courts (Journal of Laws No. 153, item 1270, as amended) - hereinafter referred to simply as p.p.s.a. - annulled the decisions of the tax authorities of both instances.

The explanatory memorandum indicates that the language interpretation of art. 14 par. 3 point 1 u.p.s.d. leads to the statement that the spouse is a person who is married. The marriage lasts from the moment it is concluded to its cessation, ie to recognize one of the spouses as a deceased or a divorce, which results from the legal regulation contained in Section IV of the k.r.io. In the case of separation being the subject of the regulation of the V.io. Department marriage does not end, which results both from the systematic separation of the k.r.io. as well as from the content of provisions contained in this Department. Separation according to art. 614 § 1 k.r.io. it has effects such as divorce, unless the law provides otherwise, however, it is not tantamount to dissolution of marriage, as evidenced by § 2 of the referenced article stating that a separated spouse can not enter into marriage. The use of the word 'spouse' by the legislature in relation to a person who is separated, confirms this position, since it is impossible to enter into another marriage. Marriage can not be concluded, in accordance with art. 13 § 1 k.r.io. a person who is already married.

In the light of the above, also bearing in mind that the separation may be abolished upon the joint request of the spouses, as provided in art. 616 § 1 of the first half of the year, and consequently its consequences cease to exist, the court of first instance recognized that persons who are separated remain spouses. Therefore, the provision of art. 14 par. 3 point 1 u.p.s.d. - counting a spouse to the first tax group, not how the tax authorities joined the third group. It was pointed out that this view is also presented by Stella Brzeszczynska (in :) Commentary to the Inheritance and Donation Tax Act (CH Beck Publisher 2005, pp. 229 and 230) and by Arkadiusz Piotrowski in the publication 'Property effects of separation' ('New Notary Review') 2004, No. 3, p. 31).

However, when spouses who are separated from the first tax group are counted, the beneficiary of the tax privilege provided for in Article 16 sec. 1 point 1 u.p.s.d. In the cassation appeal against the verdict of the Voivodship Administrative Court of November 9, 2006, the Director of the Tax Chamber complained about the violation:

1. substantive law, i.e. art. 14 par. 3 points 1 and 3 u.p.s.d. in connection with art. 614 § 1 k.r.io. in the legal status in force since December 16, 1999, by erroneous interpretation based on the assumption that the spouses whom the court judged to be separated should be included in the first tax group in inheritance and donation tax;

2. rules of procedure that have a significant impact on the outcome of the case, i.e.

a. 145 § 1 point 1 lit. a p.p.s.a. in connection with art. 14 par. 3 points 1 and 3 u.p.s.d. in connection with art. 614 § 1 k.r.io. by mistakenly accepting that the notary correctly applied the relief from art. 16 sec. 1 u.p.s.d.

b. Article. 141 § 4 p.p.S.a. by issuing a judgment which does not meet the requirements of this provision due to the fact that the tax authorities did not address the issues,

c. Article. 145 § 1 point 1 lit. a and art. 145 § 1 point 1 lit. c p.p.S.a. in connection with art. 30 § 1 and § 4, art. 51 § 1 and § 3 of the Tax Code by recognizing that it was unreasonable to adjudicate on the liability of the payer and to determine the amount of the non-deductible tax on donation. Raising the allegations, it was requested to set aside the judgment under appeal and to dismiss the application, possibly to set aside the contested decision and refer the case back to the Court of first instance for consideration and to order the costs of the proceedings.

The justification of the cassation complaint indicated that the provision of art. 614 § 1 of the penal code, states that the decision of separation has effects such as the dissolution of a marriage by divorce, unless the law provides otherwise. The Inheritance and Donation Tax Act, or any other tax act, does not provide otherwise in this matter, because there are no definitions of both marriage and separation in these laws. Therefore, since divorced spouses are included in the third tax group, and at the same time are missingdifferent provisions in this matter, the spouses for whom the court has ruled the separation should also be included in the third tax group according to the tax authority.

It has also been pointed out that since both divorce and separation result in the separation of property between spouses and the property mass passes - in this case as a result of the donation agreement - from one person's property to another person's property, as well as spouses who are divorced Separation was granted should be included in the third tax group in inheritance and donation tax.

In support of this view, the tax authority pointed to the content of the provisions of Article 940 k.c. and art. 935 k.c., which in his opinion shows that the legislator treats the spouse who was ordered to be separated, similarly as the spouse after the marriage ended as a result of divorce.

In reply to the cassation appeal, the applicant requested that her dismissal.

Legal justification

The Supreme Administrative Court weighed the following:

The cassation complaint did not merit consideration.

The essence of the dispute in the case examined is based on the provisions of substantive law, or spouses who remain separated are still included in the first tax group under the provisions of the Inheritance and Donation Tax Act (abbreviated as "upsd"), or because of the verdict between their separation should be included in the third tax group. The resolution of this controversial issue is decisive for determining the amount of due inheritance tax and donations for donations between spouses separated by a plot of land built with a residential building. Consequently, also for the determination based on the provisions of art. 30 § 1 and § 4 of the Tax Ordinance of the Payer's Responsibility (notary drawing up the donation contract) for calculation and collection in the appropriate amount of tax due from this donation. Therefore, despite the wording in the cassation complaint, allegations of breach of the provisions of the procedure and substantive law, i.e. basing a cassation appeal on both grounds mentioned in art. 174 points 1 and 2 p.p.s.a. exceptionally, first of all, it was necessary to refer to allegations of violation of the provisions of substantive law challenging the assessment of the Court of first instance for the assessment of spouses who were separated into the first tax group (Article 14 paragraph 3 point 1 of the Act on Public Security).

In the case outside the dispute, it remained as the basis of the judgment under appeal its actual state. As a reminder, the important findings were that the spouses Marzena and Andrzej J. were separated by a judgment of 20 September 2002. Then, by virtue of a donation made in the form of a notarial deed on December 20, 2005, Andrzej J. gave his wife a dream J. built-up property belonging to his personal property. In this fact, the correctness of the payment by the payer (notary drawing the contract of donation) of the parties to the donation contract to the first tax group was assessed, and as a consequence the contribution of the tax table relevant to this group and the tax credit (Article 14 paragraph 3 point 1 in connection with Article 15 paragraph 1 and Article 16 paragraph 1 point 1 upsd). With this assessment, the Court of First Instance agreed, which gave expression to the grounds of the judgment under appeal, referring to the substantive law, on the basis of which it should be assumed that spouses who are separated must be included in the first tax group (Article 14 paragraph 3 point 1 upsd in connection with Article 13 § 1, Article 614 § 1 and Article 616 § 1, cío.). The presented assessment ultimately led to the payer's complaint against the decision of the tax authorities questioning the correctness of the tax calculation (Article 145 § 1 point 1 point a.p.p.a.).

Turning to the recognition of the contentious issue thus presented, it was necessary to agree with the assessment expressed in the judgment under appeal. The Court of First Instance rightly referred to the substantive provisions applicable in the case, explaining that the spouses who had been separated had to adopt the same taxation rules for donations between them as they relate to the spouses.

Agreeing with this assessment, one should additionally point to the argumentation, which in the opinion of the Supreme Administrative Court confirmed the correctness of the interpretation of the provision of art. 14 par. 1 point 3 of the Act on Public Procurement Law, and consequently the statement that it was applicable in the case examined.

Above all, it should be recalled that the consequence of the adoption in the Law on Inheritance and Donation Tax of the principle according to which the tax burden is relatively the smaller the closer the affinity and affinity between the parties free transfer of property is the division of taxpayers into tax groups (see art. 14 upsd in fine).

An essential element in applying the criterion of family ties is the fact of marriage. The effects of marriage and usFamiliarity divorce determines the normative content of tax groups (Article 14 paragraph 3 items 1-3 u.p.s.d.).

The essence of marriage was adequately regulated in the provisions of art. 1st and next k.r.io. On the basis of tax regulations, there is no reason to seek a different understanding of marriage than that which was shaped in family law. In fact, in the absence of any indication of the institution of marriage laid down by the provisions of family law, there are no different regulations applicable only on the basis of tax law. Since these preliminary observations lead to the conclusion that family law should be applied in the interpretation of tax law provisions, these provisions will also be decisive for clarifying whether the separation between spouses should have been deemed equivalent to the termination of the marriage. Only in such a situation would there be no legal basis for the inclusion of spouses separated into the first tax group. According to the provision of art. 14 par. 1 point 3 u.p.s.d. to the first tax group were included, among others spouses. So long as the effects of the marriage concluded pursuant to the provision of art. 1 § 1 k.r.io. spouses are subject to settlement for inheritance and donation tax according to the rules provided for this tax group.

Agreeing with the Court of first instance that the decision of separation does not mean the termination of marriage should have indicated the following circumstances in favor of this kind of assessment: First, the liquidation of the marriage can only take place if the statutory conditions for the "cessation" of marriage are fulfilled. These premises have been exhaustively introduced in Section IV, entitled "Termination of marriage" of the order of the First. (Article 55 et seq.) According to these provisions, marriage "ceases" as a result of:

a. biological death of one of the spouses (Article 1 § 1 and 2),

b. annulment (Article 17),

c. recognition of the spouse as a deceased (Article 55),

d. the divorce decree (Article 56).

From the end of marriage (that is, ending the existence of an existing marriage), it is necessary to distinguish the establishment of the non-existence of marriage (Article 2 of the current year).

Among the reasons leading to the end of marriage, one should indicate the institution of divorce allowing for the dissolution of marriage during the spouses' life (Article 56 § 1 of the current year). Pursuant to this provision, a divorce judgment is admissible when the court determines that the marriage has been completely and permanently degraded (both features of the distribution must occur together), and there are no so-called negative grounds for divorce (for more on this subject, the Family and Guardianship Code with commentary, collective work edited by K. Piasecki, LexisNexis Legal Publishers, Warsaw 2002, pp. 297 et seq.).

According to the abovementioned provisions, the "cessation" of marriage does not lead to a judgment by a court of separation (this institution is not covered by the IVd.io section), there are also different reasons for adjudicating the separation from those that lead to the marriage termination during the spouses' life.

Secondly, the institution of separation introduced in 1999 into the legal order of the Republic of Poland (introduced by the Act of 21 May 1999 amending the Act Family and Guardianship Code, Civil Code, Code of Civil Procedure and some other acts, Journal of Laws No. 52 , item 532, as amended) aimed to create an alternative situation in relation to divorce to the situation of spouses in which the relationship was completely decomposed (ie breaking the spiritual, physical and economic ties). The very location of the provisions on separation (Article 611 et seq.) In a separate section of the V.io. confirms that this institution as to all its effects could not be equated with the divorce institution regulated in Section IV of the cessation of marriage. The necessity of such a situation is also indicated by the content of the parliamentary draft amendment included in the Sejm paper of the third term of office No. 591 of September 9, 1998. The justification states that "separation is generally assumed to have the same effects as divorce, application of the relevant divorce laws, unless the Code or other law provides otherwise, the exception to this rule is the proposal not to apply Article 59 of the Family Code in the case of a separation order. it is right for the separated spouse to have the right to return to the surname he wore before marriage. "

In this case, it is significant that the project authors stated that "despite the separation, the marriage is still going on". This general directive is subject to both the conditions for the ruling of separation and its effects different from divorce.

The premise of the separation judgment is the existence of a complete decomposition of marital life (Article 611 § 1 of the Civil Code). It is not required for a separation order to be a complete breakdown of a full life (as required by the provision of Article 56 § 1 of the Penalty Act in the case of divorce). One of the purposes of separation is in fact enablingto the spouses to think about the desirability of separating and possibly returning to a shared life (see op cit., pp. 447 et seq.).

Only the stated reasons for the purpose of introducing the institution of separation, its location in the structure of the Family and Guardianship Code and the grounds for adjudging in a sufficient way differentiate this institution from the divorce institution resulting in the termination of marriage.

Thirdly - the assessment of the legal consequences of divorce leading to the cessation of marriage from the effects of the separation ruling is different. The provision of art. 644 § 1 k.r.io. From the wording of this provision follows the rule that "the separation judgment has effects such as the dissolution of a marriage by divorce, unless the law provides otherwise."

Separation therefore has effects such as divorce in general in all legal aspects, unless specific regulations only apply to the situation in which the existence of marriage is required (see cit., P. 476 and A. Piotrowski, The effects of a separation judgment arising directly from Of the Family and Guardianship Code and other acts, "New Notarial Review" 2004, No. 3, pp. 31-79). The scope of exemptions from such effects as in the case of the ruling is quite wide and results from the fact that the spouses are still in a marriage.

The effects of this kind include, first of all, the fact that one of the spouses who are separated can not remarry (Article 614 § 2 of the New York Act).

In addition, separated spouses are obliged to assist each other if justified (Article 614 § 3 of the current year). This duty, as emphasized in the doctrine, concerns not only the material sphere, but also the spiritual sphere, for example moral support in the event of illness. In addition, the obligation of one of the spouses to provide means of support to the other of them, among others after the decision of separation, it overtakes the alimonary obligation of relatives of this spouse (Article 130 of the penal code).

It is unacceptable - in the mode of art. 59 - return of one of the spouses separated to the name worn before the marriage was concluded (Article 61.4 § 5 of the Civil Code). The indicated different effects of separation and divorce solely on the basis of the provisions of the Family and Guardianship Code allow to state that after the separation, the separated persons remain married - although this is not expressis verbis from the content of the provision of art. 614 § 1 k.r.io. In view of the presented circumstances relating to the essence of the institution of separation, the conditions for its adjudication and the consequences different from divorce, it should be stated that persons remaining in the state of judicial separation by a court remain a married couple.

This in turn leads to the conclusion that in the absence of different regulations in the Act on inheritance tax and donations during the separation, the spouses still remain qualified to the first tax group (see J. Głuchowski, P. Smoleń, Taxpayers classification under the Act on tax on inheritance and donations, "Gdańskie Studia Prawnicze", vol. XVI 2007, pp. 311-313).

If, therefore, according to art. 14 par. 2 u.p.s.d. credit to individual tax groups depends on the personal relationship of the buyer to the person from whom or after which the property and property rights were acquired, the following thesis should be considered as eligible: spouses for whom the court has ruled on the basis of art. 61 1 § 1 k.r.io. continue to be included in the first tax group defined in art. 14 par. 3 point 1 u.p.s.d. Thus, it was not possible to divide the arguments of the tax authorities with regard to the content of the provision of art. 644 § 1 k.r.io. to the extent that the separation can be equated with the effects of the dissolution of a marriage by divorce. Only such arguments could lead to an unacceptable claim for the inclusion of spouses separated into the third taxation group (Article 14 paragraph 3 point 3 of the Act on Public Procurement Law).

It should also be noted that the introduction of a separation institution in 1999 resulted in a change in tax regulations to allow for the treatment of a single legal person as a single parent (see Article 6 (5) and Article 7 (3)) of the Act of July 26, 1991 on personal income tax, Journal of Laws of 2000 No. 14, item 176 with amendments, as applicable from January 1, 2001).

The lack of different regulations in the Act on Inheritance and Donation Tax in relation to the effects of a court ruling on separation causes that the entirety should be accepted as binding conclusions flowing from the content of the provisions of the Family and Guardianship Code that introduce the institution of separation. Completion of spouses separated to the first tax group is at the same time decisive for the calculation of the tax taking into account the tax credit available to taxpayers based on the provision of art. 16 sec. 1 point 1 u.p.s.d.

Referring, in turn, to the alleged violation of the provisions of art. 30 § 1 and § 4 and art. 51 § 1 and § 3 of the Tax Ordinance, it should be notedthat it is closely related to the violation of the provision of art. 14 par. 3 point 1 u.p.s.d.

As it appears from the content of art. 30 § 1 of the Tax Ordinance, the payer who did not fulfill the obligations specified in art. 8 of this Act is responsible for the tax not collected or charged and not paid. If, then, art. 14 par. 3 point 1 u.p.s.d. it was not infringed, therefore the payer is not responsible for the tax not collected. Consequently, this plea did not merit consideration. Also allegations of violation of the procedural provisions raised in the cassation complaint did not merit consideration. The allegation of violation of the provision of art. 145 § 1 point 1 lit. a p.p.s.a. related to the alleged violation of substantive law. Since, as already explained to the violation of the provisions of substantive law indicated in the grounds of the cassation complaint, there was no basis for a different assessment than the one adopted in the judgment under appeal. At the same time, contrary to the grounds of the cassation appeal, the Court of first instance sufficiently explained the basis of the decision, thus meeting the requirements of preparing the justification of the judgment set out in art. 141 § 4 p.p.S.a. In turn, the allegation of violation of the provision of art. 145 § 1 point 1 lit. c p.p.S.a. he was not justified by indicating the provisions of the tax proceedings, the violation of which he did not notice, or he mistakenly noticed the Court of first instance. It should only be noted that that provision did not constitute the basis of the contested decision.

For all these reasons, the cassation appeal was dismissed based on art. 184 p.p.s.a. The decision on costs is based on the content of art. 204 point 2 and art. 205 § 2 and § 3 p.p.S.a. and § 18 para. 1 point 2 lit. and in connection with § 18 para. 1 point 1 lit. a and § 6 point 5 of the Regulation of the Minister of Justice of 28 September 2002 on fees for lawyer's duties and incurring by the State Treasury the costs of unpaid legal aid granted ex officio (Journal of Laws No. 163, item 1348, as amended).