According to experts, ZUS incorrectly classifies revenues obtained in connection with the provision of services as part of unregistered activitiesas revenues obtained under a contract of mandate, whichaccording to Przemysław Pruszyński, tax advisor, director of the Tax Department, secretary of the Tax Council of the Lewiatan Confederation, leads to absurd situationin which e.g. providing tutoring as part of an unregistered activity constitutes a contract of mandate. A student taking private lessons, in accordance with the position of ZUS, becomes an employer – a payer of contributions (Article 4 point 2 letter a of the Act on the social insurance system, i.e. Journal of Laws of 2023, item 1230) and is therefore obliged to register with ZUS as a contribution payer within 7 days from the date of employment of your tutor. He should also report the tutor to ZUS by submitting the appropriate form and then deregister him within 7 days from the end of the mandate contract, i.e. from the end of e.g. an hour-long lesson.
The same applies manicurists, domestic helpers, those taking care of children or seniors, and any other services provided as part of unregistered activities. This results from individual interpretations issued by the Gdańsk branch of ZUS: ref. no. DI/100000/43/822/2018 of July 24, 2018 and DI/100000/43/616/2022 of August 4, 2022. and answers provided by the ZUS Customer Contact Center. The information contained on the website biznes.gov.pl is also consistent with this position.
– Unfortunately, the information provided in individual ZUS branches is not consistent and different from the above-mentioned position. Customer service employees provide information that the provision of services as part of an unregistered business is not a basis for insurance coverage or that it is only a basis if the service recipient is a business entity, while if the service recipient is a natural person, the provision of the service does not trigger such an obligation. For example, this was the position taken by the branch in Częstochowa in a letter dated September 29, 2023, but as I was informed, it is to be corrected – says Michał Tyras, accountant, owner of the MB Consulting accounting office, moderator of the group which already has 71,000 members. thousand members of a Facebook group about unregistered activities.
It was supposed to be simple, friendly and without traps
Introduction of unregistered activities it was intended to take people out of the gray zone, burdening them only with the obligation to pay income tax. The condition for running such a business is a monthly income not exceeding 75%. the amount of the minimum wage and not running a business for the last 60 months before starting unregistered activity. By introducing this instrument, people who were considering starting a company were encouraged to first, without any formalities, try to implement their business idea, using this formula, which was and is praised by experts. The number of people conducting such activities increases every year. For 2022, revenues from unregistered activities showed PLN 49,000. taxpayers.
The problem arose with the interpretations of ZUS, which apply only to service providers, and which, according to director Pruszyński, are incorrect.
– Providing services as part of unregistered activities should not be classified as obtaining income under a mandate contract. Revenues obtained from services performed as part of unregistered activities should not be subject to contributions because entities conducting such activities are not listed in Art. 6 section 1 point 4 of the Act on the social insurance system (consolidated text: Journal of Laws of 2023, item 1230) and Art. 66 section 1 point 1 letter e of the Act on health care services financed from public funds (i.e. Journal of Laws of 2023, item 2561) – says the director. Pruszyński and appealed to ZUS to issue a general, favorable interpretation for unregistered persons, which, unlike the previously mentioned individual interpretations, would be beneficial for these people.
– The applicable law does not authorize Social Insurance Institution to issue general interpretations. The position of the Institute presented in the interpretation (individual edition), indicating that “in accordance with Art. 5 section 1 of the Act – Entrepreneurs’ Law, unregistered activity is activity that is not subject to entry in the CEIDG. A person performing the so-called unregistered activity does not conduct business activity and, consequently, is not a person referred to in Art. 8 section 6 point 1 of the Act on the social security system. Therefore, the concluded civil law contracts constitute an entitlement to insurance and create an obligation to do so on the principles set out in the Act on the Social Insurance System” is correct – Paweł Żebrowski, ZUS spokesman, replied to our inquiry about ZUS’s approach.
– If so, it means a serious problem for people who are registered, as unemployed and provide services as part of unregistered activities, obtaining income from them. On the one hand, the provisions (Article 2(1)(2)(H) of the Act of April 20, 2004 on the promotion of employment and labor market institutions (Journal of Laws of 2004, item 1001) allow this , and on the other hand, they prohibit an unemployed person receiving benefits from obtaining income from a contract of mandate. Such a person runs the risk of losing the benefit and having the money collected back with interest. It is worse if he applied for a subsidy to open, this time, a registered business, because if someone started to enforce regulations in accordance with the position of ZUS, he could also demand the return of the subsidy with interest – warns Michał Tyras.
The expert adds that the regulations allow for inspection and possible request for reimbursement for 3 years from receiving the subsidy. This may not be the end of such a person’s problems. In extreme cases she can also be accused of extorting public funds and all this in a situation in which labor offices, assessing the possibility of granting a subsidy, award additional points when the unemployed person conducts unregistered activity.
Both experts appeal to defuse the bomb they are sitting on conducting unregistered activities and their clients, but so far to no avail. In unofficial conversations with us, ministerial officials believe that since ZUS and Labor Offices do not enforce these regulations, it may be better not to raise the issue.
Ministry of Development and Technology promised a legal analysis and referred us to Ministry of Family, Labor and Social Policyas responsible for issues of contributions.
Officials agree
In the response sent to us, the Ministry of Labor shares the position of ZUS.
– Concluded by the above-mentioned people (ed. conducting unregistered activities) civil law contracts (mandate contracts and related contracts) they are therefore of an autonomous nature from the point of view of the provisions of the Act of October 13, 1998 on the social security system (consolidated text: Journal of Laws of 2023, item 1230) and as such constitute in each case a mandatory entitlement to social insurance and give rise to an obligation paying contributions – on general terms and conditions applicable to contractors, in accordance with the principles set out in the above-mentioned Act – writes the Ministry of Labor and Social Policy. The effect of compulsory coverage of these people with social insurance, explains the ministry, is also their full insurance protection. This includes in the event of an accident at work or an occupational disease. Accident contributions are paid by the employer/client. Only sickness insurance for contractors is voluntary – and it is they who decide whether they want to join it and, by paying contributions, later exercise the right to the so-called short-term benefits from ZUS (sickness, maternity and parental benefits, rehabilitation benefit).
The Ministry believes that there are no substantive grounds for a different interpretation or for a different regulation of the situation of persons performing unregistered (unregistered) activities in the field of social insurance, and the common position on this matter of the ministries indicated at the beginning (editors: Ministry of Labor and Social Policy) and ZUS – is clear and known since 2018.
According to the ministry possible exclusion from the social insurance obligation in the case of persons performing unregistered activities and contracts of mandate at the same time – would be in contradiction with the provisions of Art. 2a of the Act on the social security system, the principle of equality of all insured persons and contribution payers before the law in terms of social security obligations and the payment of contributions. Persons performing mandate contracts without simultaneously performing unregistered activities would still be covered by the full scope of social insurance obligations.
Problem follows problem
Sticking to the position that the student taking tutoring should register as a payer and pay contributions for the “independent” mandate contract with his tutor, according to experts, distorts the meaning of unregistered activity and sets a trap – both for those conducting such activity and their clients. This group needs to be expanded to include those selling materials needed to provide services and conducting unregistered activities.
– Today they provide the NIP at the wholesaler and take the invoice. Thus, an unaware seller, being convinced that he is dealing with a person running a business, commits an offense because he should fiscalize this transaction at the cash register. This is not the end of potential problems with the tax office. The next one is to advertise your services on Facebook. According to the VAT Act (i.e. Journal of Laws of 2023, item 1570), this is the import of services and should be reported to EU VAT. For an activity without formalities, there are probably a lot of responsibilities and, what’s worse, ambiguities – says Michał Tyras.
