No matter if we collect assets for the needs of our business activity or simply intend to allocate and multiply the capital we previously amassed, at some stage of developing our own portfolio of assets, the help of a trusted person is indispensable. On the one hand, it may not be possible to acquire movables […]
No matter if we collect assets for the needs of our business activity or simply intend to allocate and multiply the capital we previously amassed, at some stage of developing our own portfolio of assets, the help of a trusted person is indispensable.
On the one hand, it may not be possible to acquire movables and immovables in your own name for many different reasons. Tension between entrepreneurs, business strategy, administrative and tax issues or, finally, the desire to avoid disclosing your name in public registers and the will to remain anonymous are just some of them.
On the other hand, modern life is becoming faster and faster, requires being available 24 hours 7 days a week, often in several places at once. And while the development of the Internet certainly makes it easier for us to take up challenges and fulfil our goals, there are some activities that we are not yet able to do fully online.
Acquisition of real properties is one of such thing.
In case of people who either cannot or do not want to personally sign the agreement for the acquisition of the real property in front of the notary public and want to remain anonymous, a good solution is to acquire the real property in a fiduciary manner.
The idea of a fiduciary acquisition involves the person interested in the real property (the so-called investor) ordering another person, the so-called trustee, to acquire this real property. The trustee acquires real property from its current owner, to his own estate.
As a result, the investor remains fully anonymous and he does not have to reveal himself at the transaction for the acquisition of the real property and he is not disclosed in registers, also including land and mortgage registers.
However, the trustee will not retain the ownership rights to such land or premises. The trustee’s role is to acquire the real property on behalf of the investor. Thus the trustee is also obliged to transfer the ownership of the real property to the investor, so that the investor becomes its new owner.
The trustee does not have to immediately transfer the ownership title to the real property. In some cases, the investor might seek ti=o have his property discreetly hidden from overly curious people for some time. The fiduciary acquisition is perfect for such purposes.
The mutual relations between the trustee and the investor in the fiduciary acquisition of the real property are regulated by an agreement. In order to achieve the planned purpose, the agreement with the trustee must, however, directly and as a rule include an obligation of the trustee to acquire the real property – that is, it must state that the investor orders the trustee to acquire the real property, and the trustee accepts the order.
The agreement itself does not have to include the obligation of the trustee to transfer the ownership of the real property – it stems directly from the provisions of law (Art. 740 of the Civil Code). However, this issue should be regulated with appropriate contractual provisions.
The investor should also reimburse the trustee for the expenses incurred in performance of the agreement and acquisition of the real property. In practice, it usually takes place at the moment of signing the agreement, by the investor equipping the trustee with the necessary funds in the form of advance payment in the amount equal to the purchase price of the real estate.
Most importantly, the agreement for the fiduciary acquisition does not have to be concluded in the form of a notarial deed. The form of a notarial deed is required only for the acquisition of the real property. This is both convenient for the investor and by limiting the number of involved parties, allows him to remain anonymous.
It is also worth to include in the agreement:
– the time within which the trustee shall acquire the real property and the time during which the ownership of the real property will be transferred to the investor.
– the type and method for the acquisition of the real property. in particular the investor may indicate to the trustee, e.g. a specific land or premises, but also specify its type, price, location.
It is also up to the trustee and the investor to decide on the remuneration for the fiduciary acquisition of the real property. If the above-mentioned issue is not specified in the agreement in any way, the trustee will be entitled to remuneration ‘corresponding to the work performed’. Therefore, it is recommended to precisely describe this issue in the agreement.
In the case of a fiduciary acquisition of real property, the related tax obligations, including the VAT, PCC and income taxes should be taken into account.
Bearing in mind that in the case of a fiduciary acquisition of the real property there are de facto two acquisitions of the real property, all the comments below will apply to both transactions: between the seller and the trustee and between the trustee and the investor.
As a rule, a transaction in which an investor or a trustee, as a natural person, acquires real property will be subject to tax on civil law transactions in the amount of 2% of the market value of the real property. This tax will be calculated and paid through the notary public.
If the trustee or investor has the status of a VAT taxpayer, then for each transaction the investor or trustee who purchases the property will, in principle, also pay VAT tax.
However, the tax issues connected with property acquisition are regulated in detail in tax regulations and require indepth verification in each case. Depending on the nature of the real property, tax reliefs, exemptions and similar instruments might apply, which will allow you to lower the actual purchase price of the property.
In case of CIT and PIT income taxes, the purchase of real estate in both transactions should remain neutral.
The fiduciary acquisition of real properties is primarily a good solution for people who see discretion and anonymity as an important quality. Investors particularly appreciate the fact that there is no need to disclose themselves both to the seller of the real property and in public registers. At the same time, purchasing the assets through trustees allow investors to invest their capital more efficiently, without having to participate in each real estate purchase transaction in person, allowing to be spent their valuable time on other important things in life.
LBC Invest offers the services for fiduciary acquisition of real properties. If interested, please contact us for further information in this regard.