A second child with a cohabitant does not eliminate the single parent relief

Filing as a single parent is one of the most lucrative tax benefits. However, it comes with numerous conditions, which the tax authorities approach very restrictively. But they don't always prevail. This is confirmed by the ruling of the Provincial Administrative Court (WSA) in Kielce, which is very favorable for divorced parents who have children from new informal relationships.

Can a divorced person file their personal income tax return as a single parent?

The case involved a woman who has been divorced since October 2017. In her application for interpretation, she explained that she had a son with her ex-husband. The court granting the divorce granted parental authority over the minor to both parents. However, following the divorce, the child's father severed contact with him. He has no interest in the child, has not sought to influence his upbringing, and still does not make any decisions regarding the child's upbringing, health, or education.

The mother emphasized that in 2023, the court stripped her ex-husband of his parental rights. She must collect the child support ordered for her son through a bailiff. From 2019 to 2024, her son lived with her, and she was the only one receiving the child support benefit for him – currently known as the 800+ benefit.

The woman also admitted that she had been in a second relationship since 2019. She has a second child, a daughter, with her current partner, with whom she lives and is registered at the same address. However, her partner does not contribute financially to her son's support and does not influence his upbringing. The taxpayer explained that she lives with the father of her second child out of wedlock. They do not have joint accounts, but they raise their daughter together. The woman asked if, in this situation, she still has the status of a "single parent" and can file jointly with her son. Also, how many years back can she submit an amended annual personal income tax return?

From 2022, will alternate care deprive the right to tax preferences in the personal income tax (PIT)?

The tax office gave the green light for the preferences, but only for the years 2019-2021. As for the settlements for subsequent years, i.e., from 2022 to 2024, the woman was not granted the right to file a joint tax return with her son. This was based on Article 6, Section 4f of the Personal Income Tax Act, which applies to income (revenue) earned from January 1, 2022. Officials explained that under this regulation, a person who jointly raises at least one child with the other parent cannot benefit from the single-parent tax return starting with the tax return filed for 2022.

According to the tax office, since the taxpayer is raising a daughter with her current partner, she does not meet the requirements for the preference. Consequently, she cannot be considered a single parent of a son from a previous relationship. It is irrelevant that she is not married to her current partner, and that he does not interfere with her son's upbringing or contribute to his support.

This answer didn't satisfy the woman. She was convinced that the officials' interpretation was incorrect. In her opinion, the changes introduced in the Personal Income Tax Act from July 2022 mean that preferential taxation will no longer be available to single parents who raise at least one child together, even alternately, but only for that child. And it's not true, as the tax authorities believe, that this applies to the joint raising of any child, for example, one to which the tax relief doesn't apply. In the taxpayer's opinion, the officials want to punish her simply because she is also the mother of another child, whom she raises jointly with the father, her current partner.

Does an informal relationship with the father of the second child deprive you of PIT relief?

This argument proved effective. The Kielce Regional Administrative Court upheld the woman's complaint. After a thorough analysis of the regulations in force since July 2022, it noted that the legislature intended to grant the right to settle income as a single parent to one of the parents or legal guardians who actually raises the child. Therefore, the right to the disputed preference will only be granted to the parent or legal guardian who, being unmarried (except as specifically defined by law), actually raises the child alone during the tax year, meaning that they provide independent, continuous care for the child, without the other parent's involvement in the upbringing process.

However, as the Regional Administrative Court emphasized, the Personal Income Tax Act does not deprive a taxpayer of this relief when they live with persons who are not raising the children and are not obligated to do so. Importantly, according to the court, the regulations do not preclude the application of preferential taxation in a situation where the child's mother is in an informal relationship with her partner, who is the father of her second child. The condition is that the parent raises the children alone during the tax year.

The applicant is not raising her son – the child covered by the relief – jointly with the other parent, but alone. The application clearly states that the court has stripped the father of his parental authority, as he has no contact with her son and does not voluntarily pay the child support ordered for him. As the court noted, the applicant provided full, independent care for her son from 2019 to 2024. She is responsible for supporting the child and providing for his basic living needs.

As the Provincial Administrative Court explained, the complainant's partner, with whom she lives and with whom she has a second child, does not contribute financially to the first child. Nor does he influence, i.e., interfere with, his upbringing. Importantly, according to the court, the facts do not indicate that the complainant's partner adopted the son or is his legal guardian. Therefore, the court found that the woman has the right to file amended tax returns for all years 2019-2024. The judgment is not final.

File reference number: I SA/Ke 139/25