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A donation agreement may be burdened with an instruction (Art. 893 of the Civil Code). The nature of the instruction is not uniform because its content also includes the possibility of establishing a commitment to provide a certain monetary amount pursuant to Art. 393 § 1 of the Civil Code. In this case, the value of the donation should be the difference between the amount of donation obtained by the recipient and the amount of the benefit to a third party (Art. 888 § 1 in conjunction with Art. 893 of the Civil Code). A donor’s instruction for the recipient is a burden on the donation and is therefore deductible from its value. Meanwhile, a free of charge benefit performed by the donor towards the said third party is not burdened. However, the person receiving the benefit would be subject to the inheritance and donation tax on general terms (Art. 1 par. 1 point 2, Art. 6 par. 1 point 4, Art. 9 par. 1 point 1 and Art. 14 par. 3 point 1 of the Act on inheritance and donation tax). The value of the said benefit is not a debt or burden for the beneficiary, as it was performed at the expense of the donor’s assets, not the beneficiary’s (Art. 888 § 1 of the Civil Code, Art. 7 par. 1 and 2 Act on inheritance and donation tax).

Glosa do wyroków NSA z dnia 6 czerwca 2018 r., sygn. II FSK 1525/16 i II FSK 1526/16