In the opinions of the Social Insurance Institution (ZUS), the contribution payer does not have the right to choose the legal basis of exemption from the obligation to pay contributions

2019.11.04

If there is a provision that is strictly relevant to the case, the payer cannot choose to apply another provision, a more general one, even if it also corresponds to the factual situation. The September 2019 case concerned an employer who wanted to provide his employees with SODEXO food vouchers.

Employees would bear part of the purchase costs in the shape of deductions from their remuneration. The provisions on the co-financing of vouchers by employees were to be included in the remuneration regulations of the company. However, the employer had doubts as to whether the value of a food voucher (understood as the difference between the purchase price paid by the employer and the amount deducted from the employee's remuneration) was the basis for insurance contributions. The employer’s intention was to take advantage of the exemption specified in the regulation on contributions concerning so-called “one zloty benefits”. The Social Insurance Institution disagreed with the employer's position and stated that the application of a specific exemption is determined by the type of benefit. The regulation already provides for separate, special exemptions with respect to meals, therefore, the application of another exemption to a benefit which also covers employee meals isn’t allowed despite the fact that the conditions set out in the regulation have been met. Otherwise, in the opinion of ZUS, there would be liberty as to the scope of application of exemptions, which shouldn’t be interpreted broadly.

So far, ZUS has usually taken a liberal stance on the issue of exemption concerning partially paid benefits - without limiting its application to benefits not listed in other points of the regulation on contributions. It seems that if the legislative body's intention was to limit the scope of application of this exemption, the provisions would indicate it directly, e.g. by including a clause stipulating the provision doesn’t apply to a specific category or type of benefits. It should be observed whether this decision is an individual deviation from the hitherto practice, or whether it means the beginning of a  permanent practice of interpretation, which may have unfavourable consequences for employers and employees using the exemption in question.