FOR Message 24/2018: Relief for starting a business: ministerial notes do not solve the problem created by the interpretation of the Social Security Office in Gdańsk
- Relief for starting a business and introduction of unregistered business activity are two of the few real, albeit minor, improvement introduced in the "business constitution," although it should be stressed that such minor changes cannot replace a comprehensive reform of the tax and social security systems.
- It turns out that the way in which these changes are introduced clashes with government's declarations. The only interpretation issued so far - by the ZUS branch in Gdańsk – transfer the obligation to pay pension and disability insurance contributions from start-ups and unregistered businesses to their contractors who entered into an agency agreement, a contract of mandate or such a contract for the provision of services to which the Civil Code applies the provisions concerning the contract of mandate.
- Reacting to the turmoil in media caused by this interpretation, the Ministry of Entrepreneurship and Technology, Ministry of Family, Labor and Social Policy, and the head office of the Social Insurance Institution published - outside formal publication procedures - notes with a different interpretation of the rules on relief for starting a business, while ignoring problems related to unregistered activity. Moreover, neither of the institutions provided a basis for their disparate conclusion.
- These notes - unlike the interpretation issued by the Social Security Office in Gdańsk - do not create an established interpretation practice (Law on rights of entrepreneurs, Article 35 para. 4). Entrepreneurs applying the established interpretation practice in the same factual circumstances cannot be punished by any sanctions, penalties or additional levies, while those who follow the advice included in the notes, cannot count on such protection. Therefore, despite the declarations of the ministries and the Social Insurance Institution, the contractors of persons benefiting from the relief for starting a business may cease to pay contributions only at their own risk.
Marcin Zieliński, economist
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