Correcting spouses' tax returns after a separation of property agreement or ruling is a complex legal issue in Poland that requires a close look at both tax and civil law. In practice, many spouses who used to file jointly face the question of who is liable for tax arising from corrections made after their marital property regime has changed. The issue is all the more important because returns can be corrected for five years from the end of the calendar year in which the tax payment deadline passed.
Spouses who have joint marital property (wspólność majątkowa) may file a joint annual income tax return. As long as the tax liability has not become time-barred, one of the spouses can correct the return
Liability for tax arising from corrections made after separation of property raises many doubts among both taxpayers and tax practitioners. The rules of the Tax Ordinance Act (Ordynacja podatkowa) can lead to situations in which one spouse bears the financial consequences of decisions taken by the other spouse after the property regime has changed. The position of unmarried couples is different – we describe it in our article on the tax liability of a cohabiting partner.
Legal basis for joint taxation of spouses
The general rule in Article 6 section 1 of the PIT (personal income tax) Act is clear: spouses are taxed separately on the income each of them earns. This is the basic rule, and the Act allows exceptions only in strictly defined cases.
Joint taxation of spouses is governed by Article 6 section 2 of the PIT Act, which is an exception to the rule of separate taxation. Under this provision, spouses who are subject to the tax obligation, are married and have joint marital property for the whole tax year, or from the date of marriage to the last day of the tax year if they married during the year, may be taxed jointly on the sum of their income at their joint request made in the tax return.
Joint taxation of spouses does not arise by operation of law; it results from the spouses' request made in the tax return. Joint taxation is therefore a right, not an obligation, and the choice of taxation method is the spouses' own decision
Under joint taxation, the tax is assessed in the names of both spouses as twice the tax calculated on half of their combined income, after each spouse has separately deducted the amounts that reduce income. In many cases this method lowers the couple's total tax burden.
The request for joint taxation may be made by one of the spouses. A request made by one spouse is treated as that spouse's declaration that the other spouse has authorised them to request joint taxation of their income. The declaration is made under penalty of criminal liability for false statements, which underlines the weight of this decision.
If the return shows an amount to pay, the persons filing it must pay it before the deadline for filing the return. With joint taxation, this means both spouses are jointly and severally liable for the resulting tax.
Tax proceedings involving jointly taxed spouses
In tax proceedings, jointly taxed spouses are treated as one entity, forming one party to the proceedings. Each of them may act on behalf of both, which means that decisions taken by one spouse in the tax proceedings also bind the other.
As a result, the tax is assessed in the names of both spouses (Article 6 section 2 of the PIT Act), and one tax decision and other rulings in the case are issued in the names of both spouses.
Under Article 92 § 3 of the Tax Ordinance Act, spouses taxed jointly on the sum of their income are jointly and severally liable for the tax, and their claim for a refund of overpaid tax on the sum of the spouses' income is also joint and several
Joint and several liability means that each spouse is liable for the whole tax, regardless of which of them earned the income on which the tax is based. The tax authority may claim the full amount from either spouse and is not limited to the part corresponding to the income earned by that spouse.
The claim for a refund of overpaid tax is joint and several in the same way, which means each spouse may demand a refund of the whole overpayment, regardless of whose income actually gave rise to it. This is consistent with treating the spouses as one entity for joint taxation.
Rules for correcting tax returns
The right to correct tax returns is governed by Article 81 § 1 of the Tax Ordinance Act, which provides that, unless separate provisions state otherwise, taxpayers, withholding agents (płatnicy) and collectors may correct a previously filed return. A return is corrected by filing a corrective return, which replaces the original return within the scope of the correction. We prepare corrections of business returns for clients who use our accounting services.
A correction may concern any item of the return, unless separate provisions state otherwise. Correcting a return means filling in the form again correctly and marking it as a correction of the previously filed return. This legal instrument allows taxpayers to fix errors or add information omitted from the original returns.
The Tax Ordinance Act does not set specific deadlines for the right to correct. This right is therefore linked to the tax liability that the return concerns. The right to correct a return exists as long as the tax liability exists, that is, as a rule, for 5 years from the end of the calendar year in which the tax payment deadline passed, under Article 70 § 1 of the Tax Ordinance Act (the limitation period may be suspended or interrupted – Article 70 § 2–6). During tax proceedings or a tax audit, the right to correct is suspended within their scope (Article 81b § 1 point 1 of the Tax Ordinance Act).
If one spouse's correction changes a joint return into separate returns, the other spouse must also file a correction, because each of them is then taxed individually. The law does not restrict a spouse's right to correct the annual return without the other spouse's consent
In practice, this means one spouse may decide on their own to correct the joint tax return, and the correction automatically binds the other spouse as well. This can lead to conflicts, especially when the spouses are going through a divorce or have already established separation of property.
A correction may either increase or decrease the tax liability. If the correction increases the liability, the taxpayers must pay the difference with late-payment interest. If the correction reduces the liability, the taxpayers are entitled to a refund of the overpayment; interest on the overpayment is due only in the cases and from the dates set out in Article 78 § 3 of the Tax Ordinance Act, for example when the overpayment is not refunded on time.
Property liability for tax obligations
The basic rules on liability for tax obligations are set out in Article 26 of the Tax Ordinance Act, under which a taxpayer is liable with all of their assets for taxes arising from tax liabilities. This is a universal rule that applies to all taxpayers, regardless of their marital status.
For married persons, the law sets special rules on the scope of property liability. Under Article 29 of the Tax Ordinance Act, for married persons, liability covers the taxpayer's separate property and the joint property of the taxpayer and their spouse.
The legal effects of limiting, abolishing, excluding or ending joint marital property do not apply to tax liabilities that arose before the date of an agreement limiting or excluding statutory joint property, the abolition of joint property by a final court ruling, the end of joint property due to the incapacitation of a spouse, or the date a court ruling on legal separation became final
This means that changing the spouses' property regime does not affect liability for tax obligations that arose before the change. The provision protects the state's fiscal interest and prevents taxpayers from avoiding tax liability by changing their property regime.
According to established case law, a taxpayer's spouse should not be identified with the taxpayer. The NSA (Supreme Administrative Court), in its judgment of 18 January 2006 (II FSK 146/05), stressed that a spouse who is liable for the tax arrears of the taxpayer spouse is not liable as a taxpayer and is not liable for the tax liabilities, because their obligation results from the debt of the taxpayer spouse and is limited to liability with joint property.
Case law, cited among others by the Director of KIS (National Tax Information) in an individual tax ruling of 6 December 2024 (0115-KDIT2.4011.482.2024.1.MM), also indicates that Article 29 § 2 point 1 of the Tax Ordinance Act allows the tax authority to enforce one spouse's tax arrears that arose before the joint property ended, but from those assets that were part of the joint property until the marital property agreement was concluded.
Effects of correcting returns after separation of property
The effects of correcting spouses' tax returns after separation of property were explained in detail by the Director of KIS in an individual tax ruling of 6 December 2024 (0115-KDIT2.4011.482.2024.1.MM). It concerned spouses who had filed jointly for 2019–2021, had separation of property from 2023, and in 2024 filed corrections in which they were already taxed separately. According to this ruling, spouses are, as a rule, taxed separately, and such corrections concern individual tax liabilities for which the taxpayer is liable with all of their assets (Article 26 of the Tax Ordinance Act).
With separation of property, the taxpayer's liability for tax obligations that arose before joint property ended also covers assets that used to be part of the joint property. This means that establishing separation of property does not protect against liability for tax obligations relating to the period of joint property.
The applicant is liable for tax obligations arising from the corrections of tax returns made by her husband after separation of property was established. This liability covers both her separate property and assets that were previously part of the joint property with her husband
The Director of KIS stressed that the applicant could not shift the burden of these liabilities onto her husband, even though they had filed jointly for the years covered by the corrections. This is because in the corrections each spouse was taxed separately and is liable for their own tax as a taxpayer. Joint and several liability under Article 92 § 3 of the Tax Ordinance Act, by contrast, applies to spouses taxed jointly – so it covers liabilities from a correction that keeps the joint return.
If the taxpayer did not pay the amounts due, the tax authority could satisfy its claims not only from her separate property but also from those assets that were previously part of the joint property with her spouse. This solution is designed to make enforcement of tax debts effective.
Practical aspects of tax liability
In practice, the effects of correcting spouses' tax returns after separation of property can be very severe for the spouse who did not initiate the correction. Situations in which one spouse files a correction that significantly increases the tax liability after separation of property has been established are particularly problematic.
If the correction of the spouses' tax returns concerns tax years in which the spouses had joint marital property, each of them is liable for their own tax liability arising from the correction. The scope of liability covers not only the separate property left after the division of assets, but also property that used to be part of the joint property.
When describing the tax consequences of correcting spouses' returns after separation of property, it should be noted that the legal effects of limiting, abolishing, excluding or ending joint marital property do not apply to tax liabilities that arose before the date of the agreement limiting or excluding statutory joint property.
In practice, this has the following consequences:
- Each spouse may correct the joint tax return without the other spouse's consent
- A correction of the joint return made by one spouse also binds the other spouse
- Liabilities from a correction that keeps the joint return are borne by both spouses jointly and severally (Article 92 § 3 of the Tax Ordinance Act), and where the corrections switch to separate returns, each spouse is liable for their own tax
- Liability for tax obligations covers property that was joint before separation of property was established
- Establishing separation of property does not protect against liability for obligations from the period of joint property
Protecting a spouse's interests in tax proceedings
When one spouse corrects a tax return after separation of property, the other spouse has limited ways to protect their interests. Tax law does not provide a mechanism for objecting to a correction made by the other spouse.
However, in certain situations the correction or its consequences can be effectively challenged. This can be done by:
- Appealing against a tax decision issued on the basis of the correction
- Showing that the correction was made unlawfully or on the basis of false data
- Applying for deferral of the payment deadline or payment of the arrears in instalments (Article 67a § 1 of the Tax Ordinance Act) – the other spouse's mere lack of knowledge of the circumstances of the correction does not release them from liability
- Relying on limited liability in the cases provided for by law
A married couple with joint marital property filed jointly for 10 years, achieving significant tax benefits. After the divorce and division of assets, one of the former spouses corrected the joint returns (keeping the joint return) for the last 3 years of joint filing, which resulted in additional tax of PLN 50,000. Despite the separation of property, the other spouse had to bear joint and several liability for this tax from property that had previously been joint marital property.
It is particularly important to document all circumstances relating to income and expenses during the period of joint filing. If returns are corrected later, this may provide grounds for showing irregularities or limiting the scope of liability.
Strategies for reducing tax risk
Spouses planning to change their property regime should consider steps to reduce the risk related to possible corrections of tax returns. One possible solution is to review the tax returns of recent years and, if necessary, file corrections before separation of property is established.
It is also important to document properly all income and tax-deductible costs during the period of joint filing. Detailed documentation can prove invaluable in later tax disputes or when the correctness of the original returns has to be shown.
| Type of action | Purpose | Effectiveness | Notes |
|---|---|---|---|
| Review of returns before separation of property | Detecting errors | High | Requires tax expertise |
| Documenting income and costs | Protection against corrections | Medium | Important for future disputes |
| Contractual limitation of liability | Sharing risk between spouses | Low | Not effective against tax authorities |
| Civil liability insurance | Financial protection | Low | Civil liability (OC) policies as a rule do not cover your own tax liabilities |
The division of liability for tax obligations in an agreement governing the spouses' property relations should also be considered. Although such provisions will not bind the tax authorities, they may form the basis for recourse claims between former spouses.
Proper handling of tax settlements in the period before the change of the property regime is also important. Pay particular attention to:
- Completeness and correctness of the data in tax returns
- Filing returns and paying taxes on time
- Keeping documents supporting all items in the returns
- Consulting tax advisers in case of doubt
- Monitoring changes in tax law that may affect settlements
