A non-marital couple took out a joint and several bank loan to buy an apartment. After a year, they decided to part ways by establishing that after the breakup, the woman would lose her share of the apartment free of charge to a former partner and transfer her share of the bank loan obligation to him.
Ultimately, the former partner will become the owner of the whole apartment and the sole debtor of the bank loan.
The question is whether the divestment of the joint ownership of the property acquired a year ago between former partners, without payment and surcharge by means of a joint ownership agreement, will not be subject to income tax on individuals.
Pair in 2017 purchased on property, on the basis of a notarial act, an apartment with usable space 55.8 m2.
At the time of the acquisition of the premises and on the day of the application for individual interpretation, they were not married, nor were they related to each other, so they were included in the so-called Third tax group within the meaning of Article 14 of the Act of 28 July 1983 on inheritance and donation tax(Journal of Laws of 1983, item 207).
At the time of the application for an individual interpretation, the woman and the partner had an equal share in the co-ownership of the premises and each of them owned half the apartment. The couple for the purchase of the apartment took out a bank loan jointly and contributed their own share in an equal proportion.
By the date of the request for an individual interpretation, the loan was only repaid in a small part.
Planned transfer of ownership to second the co-owner in exchange for taking over the debt will be the source of the revenue referred to in Article 10(1)(8) point a of the Act of 26 July 1991 on personal income tax (Journal of Laws of 1991, item 350), the cost of obtaining income will be the cost of acquiring the property corresponding to the share
When asking a question to the body issuing the individual interpretation, the woman wanted to confirm her position that the divestment of the ownership of the property acquired a year ago between the former partners, without payment and payment by means of an agreement to abolish co-ownership, would not be subject to income tax on natural persons and would not be obliged to pay it.
The individual interpretation authority disagreed with the woman and found her position incorrect, since it is necessary to obtain a property transfer, and in accordance with the principle of contractual freedom, the sale may not only take place in monetary form, but also by other determination of her value, e.g.
exemption from debt or deduction of mutual claims due. Thus, the concept of ‘forgone’ is to be understood not only as selling but as any legal activity resulting in the transfer of property ownership, part or share not necessarily in cash.
It should also be pointed out that paid legal acts are characterised by the fact that each party receives a property benefit not necessarily in monetary form. In the case presented, the consequence of a woman's divestment of participation in the co-ownership of the housing facility will be that the second the owner of the credit in full.
It should be considered that the purpose of this operation will be to divest the joint ownership of the dwelling and to take over the loan in full by second co-owner.
In summary, the proposed transfer of ownership to second the co-owner in exchange for taking over the debt will be the source of the revenue referred to in Article 10(1)(8) point a of the Act of 26 July 1991 on personal income tax (Journal of Laws of 1991, item 350), the cost of obtaining income will be the cost of acquiring the property corresponding to the share. It should be mentioned that the transfer of a share in the joint ownership of a dwelling will be subject to PIT tax as it will be carried out before the expiry of five years from the end of the calendar year in which it was acquired.
Individual interpretation of the Director of KIS on 29 January 2019, No 0113-KDIPT2-2.4011.556.2018.4.KK
Author: Paweł Boś, law student at the Kozminski Academy in Warsaw, employee of Russell Bedford