Gifts from family and tax - the tax authority challenges the exemption

The tax authority demands gift tax on gifts within the closest family - what is the problem?

Many Poles believe that a gift received from the closest family - parents, siblings or a spouse - is completely exempt from tax. In theory, that is exactly how it should be, but the practice of the tax authorities shows a very different reality. The tax authority is increasingly summoning donees to pay inheritance and gift tax, challenging the way in which the funds were transferred.

The problem arises where the donor - for example a mother - transfers the money not directly to the account of the donee child, but to the account of a third party, such as a developer, the seller of a property or another creditor of the donee. The tax authorities then take the view that the condition of documenting the gift has not been met and, consequently, the tax exemption does not apply.

The scale of the phenomenon is large enough that the matter has been taken up by the Ombudsman (Rzecznik Praw Obywatelskich, RPO), who sent a general representation to the Ministry of Finance. Taxpayers do not understand why in similar situations some can benefit from the exemption while others are deprived of that right. This raises legitimate doubts about the consistent application of tax law in Poland.

Conditions for the gift tax exemption - what does the law say?

Of key importance is Article 4a(1)(1)-(2) of the Inheritance and Gift Tax Act. This provision exempts from tax the acquisition of ownership of items or property rights by persons in the so-called zero tax group, that is a spouse, descendants, ascendants, a stepchild, siblings, a stepfather and a stepmother. To benefit from the exemption, however, two conditions must be met cumulatively:

1. Notification of the acquisition of ownership of items or property rights to the competent head of the tax office (urząd skarbowy) on form SD-Z2 within six months of the date on which the tax liability arose.
2. Documenting receipt of the funds with proof of transfer to the acquirer's payment account, to the acquirer's non-payment account at a bank or a cooperative savings and credit union, or by postal order - where the value of the gift, added to the value of property acquired earlier from the same person within five years, exceeds PLN 36,120.

The dispute between citizens and the tax authority centres on the interpretation of the wording "to the acquirer's payment account". The tax authorities read this requirement literally - the transfer must go directly to the account of the donee. Any other form of transferring the funds, even if it unambiguously documents the fact of the gift, is in the eyes of the tax authority insufficient.

Financial consequences - how much can you lose?

Failure to meet the conditions for the exemption, as interpreted by the tax authorities, may entail serious financial consequences. It is not only a matter of the tax itself, but also of late-payment interest and possible liability under the fiscal penal code. The scale of the burden can be surprisingly high.

Take an example in which a mother gives her daughter a gift of PLN 200,000, transferring the money directly to the account of a developer in connection with the daughter's purchase of a flat. Applying the pro-fiscal interpretation of the rules:

• The standard tax on such a gift may amount to around PLN 10,761.
• If the failure to meet the exemption conditions is only revealed in the course of verification activities, tax proceedings or an inspection, the tax office may apply a penalty tax rate of 20%.
• At the penalty rate, the tax payable would be as much as PLN 40,000.
• To the above amounts you must add late-payment interest calculated from the day on which the tax payment deadline expired.
• Nor can liability under the fiscal penal code for failing to disclose the subject of taxation be ruled out.

As you can see, the consequences can be severe, particularly where the taxpayer was fully convinced of being entitled to the exemption and took no protective steps.

The administrative courts versus the Ministry of Finance

The administrative courts have repeatedly sided with taxpayers. In numerous rulings the Supreme Administrative Court (NSA) has indicated that the wording "to the acquirer's bank account" does not mean that it must be an account held directly for the donee. The requirement to document the gift should be treated as a technical condition, the sole purpose of which is to confirm that the gift actually took place.

This position is confirmed by the NSA resolution of 20 March 2023 (case no. III FPS 3/22), in which the court held that a sufficient condition for benefiting from the exemption is documenting the transfer of funds by the donor to the donee in the manner specified in the provision - regardless of whose account the money physically went to.

The Ministry of Finance, however, has taken a diametrically opposed position. In its reply of 11 March 2026, the ministry criticised the case law of the administrative courts, deeming it erroneous and contrary to the letter of the law. According to Deputy Minister Jarosław Neneman, a tax exemption is a departure from the constitutional principle of universal taxation and requires strict interpretation. The ministry also stressed that "every tax is in a sense disadvantageous to the taxpayer, because it reduces their assets".

The position of the Ombudsman

The Ombudsman, Marcin Wiącek, called for the interpretation of the rules to seek solutions that take account of the interest of the citizen and facilitate the transfer of assets between members of the closest family. The Ombudsman stressed that the exemption for the closest family is pro-family in character and implements Article 71(1) of the Constitution of the Republic of Poland, which obliges the state to take the good of the family into account in social and economic policy. By letter of 30 June 2026, the Ombudsman asked the Ministry to present the results of the analyses it had announced.

How to protect yourself against the risk - practical tips

Until the Ministry of Finance possibly changes its position or the rules are amended, taxpayers should exercise extreme caution. To minimise the risk of the right to the exemption being challenged, it is worth following these principles:

• Cash gifts should be made by bank transfer directly to the account of the donee - the donee then makes the payment to the developer or other party themselves.
• You should file the SD-Z2 notification with the competent tax office within the strict six-month deadline.
• It is worth arranging a written gift agreement that precisely sets out the parties, the amount and the purpose of the transfer.
• Keep all transfer confirmations and correspondence relating to the gift.
• If in doubt, consult a lawyer specialising in tax law before carrying out the transaction.

Remember that even a seemingly simple gift within the family can have serious tax consequences. The pro-fiscal interpretation of the rules applied by the tax authorities does not match the position of the administrative courts, which creates a state of legal uncertainty in which it is easy to make a costly mistake.

Planning to give or receive a gift from a close relative? Do not take the risk - contact our firm. We will help you document the gift correctly, prepare the necessary notifications and safeguard your right to the tax exemption. Act before the tax authority challenges your tax treatment.