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Country Report for NGO Laws and Regulations

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IRNL – Poland
COUNTRY REPORT
FOR NGO LAWS AND REGULATIONS IN POLAND

Consistency and Clarity of the Laws

While the specific term “Nongovernmental Organization” (NGO) remains undefined
under the Polish law, there are two main laws that set forth conditions for the existence of
the most common forms of NGOs; these are the Law on Foundations and the Law on
Associations. In addition to these laws, however, there are countless o
ther laws that
define various kinds of NGOs. These include the Law on Higher Education, the Law on
Physical Culture and the Law on Hunting. There are also at least six se
parate laws
regulating the relations between the government and various religious denominations and
define NGOs that can be established by them. In addition there is a Law on Labor
Unions and a Law on Organizations of Employers. Finally, there is a separate
administrative order, establishing the Polish Red Cross. All of these docum
ents, and
several more (the above list is not exhaustive), define organizations that can b
e
categorized as NGOs. And many of them define various privileges and limitations under
the law.

Given this very complex environment, there is a great lack of clarity and consistency in
the law. Complicating matters further are many other laws that apply directly to NGOs.
These include the Law on Registration, the Law on Economic Activity, the Law Limiting
the Undertaking of Economic Activities by Public Officials, the Law on Procurement, the
Budget Law, the Public Finance Law and the three separate laws on the op
eration of
three different levels of self-government listed from the largest to the smallest:
wojewodztwo, powiat and gmina. Of course also of great impact are the Law on Income
Tax of Physical Persons and the Law on Income Tax of Legal Persons.

The legislative culture that has taken hold in the post-communist Poland is one that
frequently rushes poorly conceived or unfinished draft laws to passage.
The general
approach is one of revisiting laws every so often in order to improve on them. The term
for this, “nowelizacja,” does not have a good English equivalent. The b
est translation is
perhaps “overhaul.” Thus laws are not just amended, but “overhauled” every few years.
Almost all of the laws listed above have been subjected to this in the past
five years, most
in the past two to three years.

The Polish courts are hard pressed to keep up with the numerous conflicting laws and the
frequent changes in the various laws. The result is a certain inconsist
ency and
unpredictability of court decisions, leading to further lack of clarity.

Constitution

The Constitution, in force since October 17, 1997, states the following
in the preamble:
“…with the wish to forever guarantee civil rights and to ensure hones
ty and efficiency in
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the operation of public institutions… …we enact the Constitution of the Republic of
Poland as the basic law of the land, based on respect for liberty and ju
stice, cooperation
of authorities, social dialogue and the principl e of subsidiarity that strengthens the rights
of citizens and their common good.”

The Constitution, which was approved by a general national referendum, is modeled in
many parts on other constitutions of free and democratic nations. It is based on the
sovereignty of the people and guarantees basic human rights typically guaranteed in free
and open societies, including the freedom of speech (art. 53), assembly (art. 57) and
association (art. 58). The Constitution also expressly guarantees the
freedom to form,
among others, associations and foundations (art. 12).

Types of Organizations

Many different types of NGOs are recognized as legal persons based on a multitude of
laws, as outlined above. The two principal types of NGOs, however, are
Associations
and Foundations. The formation and basic operation of these entities are governed by the
Law on Associations and the Law on Foundations.

The Law on Associations defines an Association as a self-governing, last
ing
(membership) organization, formed of free will and with a nonprofit motive. The Law
provides that Associations may be formed by Polish citizens or foreigners who are
domiciled in Poland, who are not otherwise disqualified from performing legal acts. The
qualifications to form an organization are distinguished from the qualifications to join the
organization. The Law asserts that no one can be forced to join or prevented from freely
withdrawing from an Association. There is also a prohibition on forming Associations
that require unqualified obedience of the members to the Association leaders.

Interestingly enough, the Law on Foundations never defines what is a Fou
ndation. Thus
the specific definition must be inferred from other provisions of the Law. Generally
speaking, a Foundation is a non-membership organization, established by a founder (who
provides the Foundation with a starting capital) for a public benefit p
urpose. Note that
this is a different understanding from many other countries, where a Foundation may be
formed for any legal purpose not just a public benefit purpose. A foundatio
n must also
be formed for a nonprofit purpose and as of recently, may not be formed by the State
Treasury.

The law presently does not explicitly distinguish NGOs that provide publ
ic benefit
purpose. But note that Associations may be formed for any legal nonprofit purpose, thus
providing for the possibility for either public benefit organizations or
non-public benefit
organizations (e.g. mutual benefit organizations), while Foundations may only be formed
as public benefit organizations. Missing completely from the Polish legal scheme is the
possibility of forming non-membership, non-public benefit nonprofit organizations.

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Purposes

An Association is free to define its purposes, operational program, and organizational
structure and to pass internal resolutions about its operations. It is
limited in its purposes
and activities only by other laws that are necessary to ensure national
security, public
order, protection of public health and morals and the protection of rights and freedom of
others.

A Foundation may only be formed for purposes that are economically beneficial or useful
to the welfare of the Polish Republic, particularly ones such as: protec
tion of health,
economic and scientific development, enlightenment and education, art and culture,
public welfare, protection of environment and historical monuments.

Other types of NGOs, from volunteer fire fi ghting organizations to private schools to
church sponsored charitable organizations are organized for the purposes
specified in the
applicable laws.

Registration Requirements

In order to form an Association that is recognized as a legal person, the law requires t
hat
at least fifteen persons approve a statute and elect an organizing committee. The
committee registers the association by filing with a regional Registration Court a petition
for registration, together with 1) the statute, 2) a list of the organizers, including their
names, places and dates of birth, addresses and signatures, 3) minutes of the meeting at
which the organizing committee was elected, and 4) the interim address of the
Association. An Association may be formed by Polish citizens or foreigners domiciled in
Poland, who are of legal age and have no limitations of their rights (i.e. through felony
conviction, etc.). Legal persons may not be founders, but may become members of an
Association, and are limited to a status of “supporting members.” This status is poorly
defined, but seems to imply that they are nonvoting members. Additionally, Associations
of Associations (umbrella Associations) may be formed by just three Associations.

The Registration Court is obligated to make a determination with respect to the petition
within three months. However there is no default provision should the court not meet
this timeframe. The Court must deliver copies of the registration documents to the
regional government authorities that may also render an opinion. Should the court find a
need it may order a hearing with the participation of the organizing committee. The only
justification for denying registration is that the filing documents do not meet the
requirement of the law. Upon a favorable decision on registration, the Associat
ion may
begin its activities and is formally entered into the Register.

There is also a special form of a Simplified Association that does not need to be
registered. The organizers only need notify the authorities about the f
ormation of the
Simplified Association (providing the appropriate information). Just three persons are
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needed to form a Simplified Association, but such Associations are not legal persons and
are severely limited in their activities.

A Foundation may be formed by Polish citizens or foreigners, who are of legal age and
have no limitations of their rights (i.e. through felony conviction, etc.). It m
ay also be
formed by legal persons, foreign or domestic. A foundation formed under Polish law,
however, must be based in Poland. Foundations may be established through a notarized
document expressing the wish of a founder to form a Foundation, or by a will. The
founding document must be filed with the appropriate regional Registration Court
together with the proposed statute of the proposed Foundation. (In the
case of a
Foundation to be established by a will, where no statute is provided, th
e Civil Code
provides the appropriate regulations.) The statute should provide the concrete purpose of
the Foundation. In the case where the Foundation plans to engage in eco
nomic activities,
a minimum starting capital of 1,000 zl ($250) is required.

The Registration Court examines the filed documents and makes a registration
determination based on whether the documents meet the requirements of the law. There
is no legally proscribed timeframe in which this must happen. However, since a
Foundation may only be formed for public benefit purposes (see above), the court must
most significantly make a determination whether the proposed statutory purposes meet
this requirement.

A consistent determination of this has proven elusive in recent years as the court has
often struggled with trying to make a determination of what is and what is not a public
benefit purpose, guided only by the few brief examples contained in the Law on
Foundations (see above). Also, through the year 2000 all of the Found
ation registration
procedures were handled by only one central court. Beginning January 1, 2001,
however, this responsibility has been divided among sixteen regional courts. It is unclear
exactly what effect this will have on the registration of prospective Fo
undations, but one
may speculate that this will only further add to the unpredictability of
decisions.

A Foundation gains legal person status upon a favorable determination on registration by
the Registration Court and subsequent entry in the Register. At this ti
me, the
Registration Court also designates the “appropriate minister” to oversee the operations of
the Foundation. This “appropriate minister” may be designated by the Foundation in its
statute. Typically, it is the minister whose competency comes closest to the purposes of
the Foundation. If the Foundation has a limited geographical scope of operation, the
appropriate wojewoda (regional public official) is also notified.

NGO Register

The Law on National Court Register establishes a separate register for associations, other
civic and professional organizations, foundations as well as public heal
th clinics. The
Register is maintained by the Central Information of the National Registration Court in
cooperation with the Regional Registration Courts.
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In the section on Associations the following information is entered: 1) name of the
Association as well as the region where it operates, 2) the date of the
entry in the
Register, 3) purposes of the Association and the proposed means of their realization, 4)
names of the members of the organizing committee, 5) composition of the governing
organ and the address of the Association, 6) information on who may represent the
organization and how it undertakes financial obligations. After registr
ation, all
resolutions of the court with respect to the organization are also enter
ed. The governing
body of the Association is also obligated to inform the court within one month of any
changes to the above information and changes in its governing statutes, and these are also
entered in the Register. Thus with respect to Associations, the Registe
r is generally
accurate and up to date. Organizations that are denied Association status are not entered
in the Register. Defunct Associations are purged from the Register.

In the section on Foundations the following information is entered: 1) entry number, 2)
name, address and purpose of foundation, the date of formation and a few words about
the founder, 3) the designation of the appropriate minister, and identification of the
appropriate wojewoda (regional public official), 4) a note on the foundation statute, 5)
names of the members of the governing body (and other organs) of the Foundation as
well as the scope of their authority, and in the case of suspension of t
he governing body –
the name of the court appointed caretaker, 6) the type and scope of proposed e
conomic
activities, 7) other notes, but particularly ones dealing with motions by the appropriate
minister or wojewoda to suspend the Foundation’s governing body, the court’s
appointment of a caretaker and the rescission of such appointment.

Like an Association, a Foundation is also obligated to inform the court about any changes
to the above information and changes in its governing statutes and these are also entered
in the Register. Thus with respect to Foundations, the Register is also
generally accurate
and up to date. Organizations that are denied Foundation status are not
entered in the
Register. Defunct Foundations are purged from the Register.

The Association and Foundation Register is open for viewing to any inter
ested third
party.

General Powers

Generally, Associations and Foundations have all the powers of legal per
sons. However,
in the case of a Foundation, its ability to conduct economic activities is severely limited.
While it may seem counterintuitive, a Foundation is only allowed to conduct economic
activities that do not coincide with its statutory purposes. Thus, for example, a
Foundation that is formed for the purpose of working for cleaner environment would be
prohibited from selling books or taking fees for seminars on the topic, or even
contracting with the government to undertake clean-up efforts. The same foundation,
however, would be permitted to operate a gas station to help fund its work. This is
perhaps one of the most far reaching flaws of the present Polish NGO law.
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Membership Organizations

The Law on Associations sets out the rules for membership organizations. There is no
prohibition on Associations that may want to limit membership or remove members.
Rules with respect to membership may be initially adopted by the Association’s
organizing members and later by the membership. Rules on membership do specify that
young people ages 16-18 may freely join Associations, while those under the age of 16
may only join as nonvoting members and must have the permission of a parent or
guardian in order to do so. As already stated above, The law also asse
rts that no one can
be forced to join or prevented from freely withdrawing from an Association. There is
also a prohibition on forming Associations that require unqualified obedience of the
members to the Association leaders.

Governance

The Laws on Associations and Foundations each separately prescribe gover
nance
requirements for these organizations.

An Association, if it does not specify otherwise in its statute, is gove
rned by decisions
undertaken at a general membership meeting. However, the statute does not prescribe
quorum requirements, nor does it address the issue of what portion of the membership
vote is required for passage of a resolution. The law allows that the A
ssociation statute
prescribe that governance may be delegated to a meeting of elected delegates. But again
all the details of such a solution are left to the discretion of the Ass
ociation. The
Association is, however, required to have a management and an organ of internal control.
The election and functioning of these organs should be prescribed in the statute. Finally,
an Association may form subsidiary organizations. The governance of these must also be
set out in the statute, or if these are to have their own legal person s
tatus, this also must
be set out in the statute.

A Foundation is required to have a management that directs its activities and represents it
at large. A Foundation may also have other organs. The law, however, does not
prescribe any specific competencies for any of these organs. Typically foundations, in
addition to the management have a board of directors that sets organizational priorities
and appoints the management. But again, all of these decisions are left to the discretion
of the organizational statute.

Neither the Law on Associations nor the Law on Foundations provides many necessary
anti-abuse provisions dealing with such important issues as conflicts of interest and self-
dealing.

Dissolution, Winding Up, and Liquidation of Assets
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An Association may dissolve on the basis of its own resolution or it may be dissolved by
the court. In the first case, the members of the organization act as liquidators, unless the
statute or a resolution of the governing organ dictate otherwise. In th
e second case, the
court appoints a liquidator. The cost of the liquidation is born by the
Association and the
remaining assets are distributed for the purposes named in the statute or by a liquidation
resolution. In the absence of a directive on distribution of assets, th
e court appropriates
the assets to a public benefit purpose.

A Foundation is dissolved if its purposes have been achieved or if its f
inancial assets
have been exhausted. The Foundation’s statute should prescribe the procedure for the
dissolution. If there is no such prescription in the statute, or if the statute is not being
followed, the appropriate minister or wojewoda (regional public official) petitions the
court for the dissolution. If the statute does not specify how assets a
re to be distributed
upon dissolution, the court decides on the distribution of these assets,
taking into account
the purposes served by the Foundation.

Regulation

The oversight of Associations is entrusted to the appropriate wojewoda (
regional public
official). However the government’s power is limited to demanding copies of resolutions
adopted by an Association and demanding any n ecessary clarifications. No reporting of
any kind is required. The real oversight power then is vested in the co
urt, which, on the
motion of the wojewoda or the prosecutor can fine the Association up to 5,
000 zl
($1,250) for not complying with the demands of the wojewoda and invalidate resolutions
adopted by the Association that do not comply with the law or with the Association’s
statute. The court may also dissolve the Association, for gross or persistent
noncompliance with the law or the Association’s statute when there is not a possibility of
restoring compliance.

Unlike an Association, a Foundation is required to file detailed annual
activity and
financial report. The format of the report is strictly prescribed by government
regulations. The report is filed with the appropriate minister but the Foundation must
also make it available to the public. Interestingly, the appropriate wojewoda
(regional
public official) can view the report only on the basis of this public a
ccess. As with
Associations, real oversight power over Foundations is vested in the cou
rt. On the
motion of appropriate minister or wojewoda the court may invalidate resolutions adopted
by the Foundation that do not comply with the law or with the Foundation’s statute or are
inconsistent with its purposes. The court may also suspend the management and appoint
a caretaker manager, if the noncompliance is not addressed in a time prescribed by the
appropriate minister or wojewoda, for the purpose of bringing the Foundation into
compliance, or ultimately, for the purpose of appointing a new management. The
decisions of the court may be appealed according to the provisions of the Civil Code.

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Foreign Organizations

The Law on Associations and the Law on Foundations do not regulate forei
gn
organizations. Polish Associations and Foundations, however, are in no way prohibited
from receiving foreign grants. Foreign F oundations and Associations may register
representatives in Poland; representatives of foreign Foundations are su
bject to reporting
requirements.

Miscellaneous

Under Polish law, there are no explicit rules for mergers and split-ups of NGOs. Neither
are there special rules for investing the property or an endowment of an NGO. However,
with respect to Foundations, the location of assets in anything other th
an a bank account
may carry with it unpredictable tax implications. The Highest Administrative Court has
ruled that income invested in anything other than a bank account will be considered as
income that is not being applied to the statutory purposes of the Foundation
and thus
considered taxable income.

The Law on Associations specifically states that an Association has a ri
ght to express its
views with respect to public affairs. There is no such clause in the La
w on Foundations
and of course, both Associations and Foundations need to be mindful of the consistency
of its advocacy activities with its own statute. This, however, seems to be the only real
limitation on these kinds of activities.

Income Tax

Tax law does not provide for any list of type s of organisations that are tax exempt.
Instead of that, it is stipulated that tax exemption is available for taxpayers whose
activities (as shown in their statutes or articles of incorporations) include the following
items:

„ science and technical scientific research;
„ education;
„ culture;
„ sport and physical exercises;
„ environmental care;
„ support for infrastructure development in rural areas (roads, telecommunication and
networks for providing of water);
„ charity,
„ health care and social care;
„ occupational and social rehabilitation of the disabled;
„ religion.

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The tax exemption is applicable if an organisation declares that an income is designated
for the purposes listed above. This tax exemption is valid as long as an organisation does
not use exempt income for purposes different that these initially declared. The exception
to this rule concerns membership dues (an organisation may use it for any purposes,
except for business operations). Also note however, that the tax author
ities understand
“use of income for purposes other than these set forth by the tax law” very extens
ively. In
particular, the Highest Administrative Court has ruled that income is “used for other
purposes” even if it is spent for typical passive investment, e.g. purchase of treasury bills.

All types of income is eligible for income tax exemption, except for income derived from
activities explicitly defined by the tax law, which are:

„ production of alcoholic beverages, tobacco, fuels, electronic devices, precious metals
(and goods made of precious metals),
„ trade of precious metals (and goods made of precious metals).

Generally, there are no advance tax rulings available under the Polish t
ax law. However,
a ruling from tax authorities may be asked for if a taxpayer is in doubt relating to his tax
position (e.g. if an organisation is not sure as to whether its activit
y falls within the scope
of exemption).

An organisation taking advantage of exemption may engage in business, political or any
other activity. Also, the presence of business activity does not effect
possible non-
taxability of other income.

Currently there are no minimum distribution rules (such rules existed in the past, but
were repealed). This means that tax exempt income may be accumulated without any
restrictions.

Charitable donations and donations for all other purposes enumerated as exempt are
deducted from taxable basis in both personal and corporate tax. The deduction from
taxable basis, however, is subject to the following limitations:

„ donations for charity (and other purposes such as religion, public secu
rity, national
defence, environmental care, fire protection, housing investment carried by local
governments) are deducted from taxable basis insofar as they do not exceed 10% of
the taxable basis;
„ donations for certain other purposes (science, education, culture, spor
t and physical
exercise, rehabilitation of the disabled, health care and social care, s
upport for
infrastructure investment in rural areas) are deducted from taxable basis insofar as
they do not exceed 15% of the taxable basis.

Total amount of all deductable donations may not be higher than 15% of the taxable
basis.

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There are no strict limitations regarding type of organisation to which donations are
transferred; the only restriction is that donation, in order to qualify
for tax exemption,
may not be made for the benefit of:

„ natural persons;
„ entities engaged in production of alcoholic beverages, fuels, tobacco, e
lectronic
devices, precious metals,
„ entities engaged in trade of precious metals.

No carryforward of unused deductions is allowed.

Customs Duties

The customs exemption is stipulated directly by Customs Code. There are no schedules
(etc.) which have binding power in this regard.

Import of medical equipment and materials (medicines, blood etc.) that constitute
humanitarian relief and are imported by entities whose activity includes humanitarian aid
are exempt from customs duties, but only if the goods imported are (i) received free of
charge or (ii) purchased using funds derived from street charity collections.

Customs duties exemption is claimed duri ng the customs clearance (although there are
no formal exemption certificates or specif ic procedure), i.e. SAD import document must
be filled in appropriately and documents concerning identity of importer
must be
presented.

There are no specific anti-abuse provisions with respect to Customs duties exemptions.

VAT Tax

There are no exemptions in VAT available for specific kinds of persons/organisations. If
a person carries out a sale of goods or services, this person may elect to be in the VAT
system even though he is not in this system by the virtue of law. On the other hand, a
person not involved in any VATable activities may not enter into the VAT system. In
case of import, each importer is a VAT payer automatically. The VAT rates are 0%, 7%
and 22%.

A varied list of goods and services are zero-rated or exempt from VAT on the basis of the
VAT Act. Moreover, the Minister of Finance’s decree on VAT provides a
n additional list
of VAT exempt goods and services.

Gift and Estate Taxes
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Gift, estate and inheritance taxes do not apply to organisations at all. This tax is levied on
natural persons only, while legal persons (inclusive of non profit bodi
es, such as
associations or foundations) are subject to income tax in reference to gifts/inheritances
received (in other words, gifts received create income for income tax purposes). Like
other income, however, gifts/inheritances received may qualify for exemption from
income tax in the same way as any other income, which effectively means that gifts used
e.g. for charity purposes are tax exempt.

Taxes on Real Estate

Tax exemptions on real estate are available for the Associations conducting cert
ain
activities (propagation of education, sports, recreation and science)
for the benefit of the
youth and children. This exemption is not available for real estate used in business
activity. Other types of organisations pay real estate tax according to
the general rules.
(Note that real estate tax charged on the plots and buildings, which ar
e not used for
business purposes, is very low and does not create an excessive burden o
n the owner.)

Compliance

No studies have been done on NGO compliance with the law. As the law is frequently
unclear and inconsistent there is often difficulty in complying with every aspect of it.
However, the compliance with the general framework and intent of the Law on
Associations and the Law on Foundations seems to be very good.

Nevertheless, anecdotal evidence suggests that there is a popular percep
tion that NGOs
have been used to avoid paying taxes that ought to be paid on business o
r commercial
profits and that they have also been used by politicians or government officials to benefit
themselves politically or financially.

The law generally does not provide sanctions specifically for NGOs with
the exception of
the ones discussed under
Governance above. In general the sanctions are weak and non-
self-executing.

Government Funding

The government funding of NGOs is presently the hottest topic for Poland’s NGO
community. NGOs may compete for funds on the basis of the Law on Procurement,
while local self-governments define their own funding protocols. Access to funds,
however, is often impeded by the local self- governments’ mistrust of NGOs. Local self-
governments vary vastly from one to another, and while some are eager to cooperate
extensively with NGOs, many are not. Thus, the relations between the NGOs and the
local self-governments present a most varied landscape. Much of this will need to be
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solved with political willpower, as experiences with the good work of th
e NGO sector
multiply.

There is, however, a great impatience on the part of the sector to force the government
and self-governments into cooperation, by invoking the subsidiarity principle from the
preamble of the Constitution. While some creative solutions may soon be tested, the
biggest hope for the future would seem to be providing for strong anti-abuse regiments in
the NGO sector, that will turn self-government cooperation with the NGOs into
undisputed good policy.

Privatization

No special legal forms or procedures have been created to facilitate the privatization into
the NGO sector of state assets or programs. In practice, the most essential NGOs like the
Polish Red Cross or volunteer fire fighting organizations have been created with special
laws or administrative orders.

Conclusions

The most important legal issues with respect to Poland’s NGO sector are the
impermissibility of Foundations to engage in economic activities related to the purpose of
the Foundation and their inability to prudently invest capital without t
he investments
being characterized as “non statutory purpose expenditures,” and thus subject to tax.

The latter issue is presently being addressed in the courts. Also, an a
mendment to the tax
law has been introduced in the Parliament by a broad coalition of MPs that, if passed,
will address this problem.

Thus, the first issue is perhaps the most serious one presently facing NGOs. As the
premise seems to be bizarre, noncompliance is rampant. For the most part there is,
however, no strict enforcement of this law, except when the issue arises with respect to
registering a new Foundation. Amending the Law on Foundations to permit Foundations
to engage in all kinds of economic activities should be a top priority. The Amendment
should also free Foundations to be organized fo r any lawful purpose, rather than only for
a public benefit purpose.

A draft law on Cooperation of Public Administration Authorities with Nongovernmental
Organizations has been in preparation for a long time. However, many key issues with
respect to this document remain unresolved. Most notably, a reasonable definition, and
oversight and certification regiment of public benefit organizations has proven to be
elusive. Also, there is difficulty in codifying the permissibility of economic activities by
public benefit organizations and the appropriate taxing approaches with
respect to these
activities.
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Perhaps most important from the perspective of Poland’s NGOs is a lack of agreement on
the role that NGOs should play in the making of public policy and the access of NGOs to
public funds. From an international perspective, however, the most alarming fact about
the present version of the draft law is its almost complete avoidance of necessary anti-
abuse provisions, whose absence will continue to promote the general public perception
of NGOs as corrupt organizations.

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