What activity can be performed under a contract for specific work exempted from the health insurance premium?

Pursuant to the Act of 29 October 2021 amending the Personal Income Tax Act, the Corporate Income Tax Act and certain other acts (Journal of Laws of 2021, item 2105 pending entry into force on 1 January 2022), the so-called New Deal, a number of changes significantly affecting taxpayers were introduced.

However, the New Deal, pursuant to Article 15 of the aforementioned Act, did not change the principles set out in Article 66 of the Act of 27 August 2004 on health care services financed from public funds (i.e. Journal of Laws of 2021, item 1285) with regard to contracts for specific work. Health insurance contributions are not paid for contracts for specific work concluded with entities other than one's own employer.

Pursuant to Article 8 of the Act of 13 October 1998. (Journal of Laws of 2021, item 423) on the social insurance system, a person who has an employment relationship is considered an employee, subject to sections 2 and 2a. Within the meaning of the Act, a person who performs work on the basis of a contract to which, pursuant to the Civil Code, the provisions concerning a contract for specific work apply, if such a contract has been concluded with an employer with whom he has an employment relationship, or if under such a contract he performs work for an employer with whom he has an employment relationship, is also considered an employee.

A person who performs work exclusively under a contract for specific work is not subject to health insurance. It is worth noting that contractors will benefit from the increase of the tax-free amount of PLN 30,000 and raising the second tax threshold to PLN 120,000. It means that a contract for specific work under the indicated rules remains one of the most profitable forms of activity on the labour market.

Pursuant to Article 627 of the Act of 23 April 1964 - the Civil Code (i.e. Journal of Laws 2020, item 1740, as amended), a contract for a specific work consists in the fact that "the ordering party undertakes to perform a specific work and the ordering party undertakes to pay remuneration."

In order to assess whether activities can be performed under a contract for specific work, it is crucial to assess whether the contract is aimed at achieving the result-product agreed by the parties. Such a result should be certain and clearly defined, and therefore has an individual character. Moreover, it is emphasised that the action should be one-off, and the work is to be created on a date specified by the parties. A contractor of a work may entrust a third party with the performance of the work, but he takes responsibility for the final result. Thus, the performance of a work usually consists of:

- the production of a thing,

- the alteration of an existing thing,

- the repair of a thing,

- the modification of a thing,

- the addition or extension of a thing,

- the combination of a thing with other things,

- addition of components.

In the case of a contract of mandate, however, there is no certainty as to whether the activities to which the contractor has committed itself will lead to the intended result. Thus it differs from a commission agreement regulated in Article 734 et seq. of the Civil Code, which is an agreement of diligent work. In a contract of mandate, it is the contractor that is liable for lack of due diligence in performance of the activity, and not for its result. No material object or result has to be created in the course of performance of a contract of mandate. However, it is important to perform certain activities cyclically, in a repeated, continuous and systematic manner. Therefore, a contract of mandate is performed for a certain period of time. Moreover, the contractor is obliged to perform the activities personally.

In order to classify an activity as a contract for specific work, not only its name and provisions included in the contract are decisive. In order to determine the actual content of the contract, it is necessary to examine its purpose and all circumstances related to the manner of performance of the contract.

As of 1 January 2021, payers of contributions and natural persons entering into a contract for specific work with a person with whom they do not have an employment relationship or under such a contract do not perform work for their employer, are obliged to report the contract to the Social Insurance Institution, which significantly facilitates the control of Social Insurance Institution employees.

The Social Insurance Institution has the right to inspect the fact of concluding an agreement and its content in order to determine whether the entity has fulfilled its legal obligations, and whether it has performed the correct qualification. The purpose of such an examination is to determine whether the entity was entitled to exemption from health insurance premiums. If the Social Insurance Institution finds that the contract for a specific work was concluded in appearance or to circumvent the law, it declares it invalid and calls for payment of overdue contributions. The Social Insurance Institution (ZUS) often questions the correctness of considering a contract as a contract for specific work by issuing a decision on the taxpayer. It is worth noting that a decision of the Social Insurance Institution (ZUS) in such a case may be appealed and the case won, as it happens many times that the decisions of ZUS in such cases are incorrect.

By way of example, it may be indicated that ZUS lost in the following proceedings:

1. as ruled by the Supreme Administrative Court in the judgment of 28 January 2021. II GSK 908/18, the contractor of a "photo-inspection" of the effect of his work, i.e. correctly taken photographs of a real estate together with a report on an inspection of the real estate carried out at a designated place, documenting, inter alia, the progress of construction works, may conclude a contract for a work because it cannot be considered that the performance of the work according to the bank's specific guidelines negates the creative, individual and independent nature of the work in question.

2. As held by the Court of Appeal in Rzeszow in its judgment of 20 April 2017. III AUa 654/16, the performance of work related to organising and archiving personal, medical and financial-accounting documentation from the periods listed in the contracts, in the registered office of the company, in a specific order could be performed on the basis of a contract for work.

3. As ruled by the Supreme Court in its judgment of 25 October 2016. I UK 471/15, the contract concluded by the contractor of a construction investment (contract for a result) with its subcontractors aiming at one technological process and causal relationship of co-performance of construction works for co-achievement of a specific object with cost remuneration for the achieved result is not a contract for diligent work, unless the circumstances of the case indicate that the subcontractor performed various construction services of a diligent work nature.

A contract for work should not be the basis for, inter alia, lectures, translations involving long-term employment and repetitive translation of documents related to the current activity of the company, for a fixed remuneration, conducting sports, training, swimming lessons, cleaning, or a driving course.

If you are ready to engage in a polemic with Social Security, I invite you to take a look at the offer - link to the offer.

Applications:

1. A contract for specific work is currently the most favourable form of activity on the labour market, as it is exempt from health insurance contributions under certain conditions.

2. The contract for specific work may be concluded in connection with the performance of a one-time activity which results in a personalized specific result.

3. 3 The Social Insurance Institution (ZUS) controls whether the entities have correctly qualified an activity as a contract for specific work and may issue a decision in which it finds the entity's activity to be incorrect and charge it with overdue contributions. The register of contracts for a specific task, which has been in operation since 1 January 2021, is a simplification for ZUS.

4. It often happens that the Social Insurance Institution (ZUS) assesses the facts incorrectly, therefore it is worth fighting for your rights.