Expert comment on the refusal to issue a protective opinion no. DKP3.8082.10.2023 of June 12, published on June 28, 2024. Commented by Monika Piątkowska, tax advisor at epity.pl.
The request for a protective opinion for the company regarding a change in the form of employment of its employees was met with a strong reaction from the Head of the National Tax Administration. In the document, the joint-stock company explained that it intended to establish a subsidiary in which it would own 100 percent. shares. Next, it is planned to replace the employment contracts signed by employees with the parent company with service contracts concluded with the subsidiary as part of business activities.
The head of the National Tax Administration refused to issue an opinion, emphasizing that the taxpayer’s goal in this case was to avoid taxation. According to the tax authority, the Company would not be obliged to collect tax as a payer, and employees would be able to tax their income at a flat tax rate (19%) or a lump sum on recorded income (from 2 to 17% of income), instead of the current taxation according to the scale (12 and 32 percent).
The head of the National Tax Administration found that such action may lead to a tax advantage contrary to the legislator’s intention. In the situation presented in the application, according to the tax authority, the taxpayer’s activity would only formally constitute non-agricultural business activity, but in fact it would still remain an informal employment relationship.
The Tax Office is looking at converting full-time employment into self-employment
By this refusal to issue a protective opinion This is a signal for people who cooperate on a B2B basis with their former employers that in the event of an audit, the issue of changing the form of employment may be thoroughly verified by the tax office.
