The first anti-crisis shield offered 3-month exemptions from mandatory social insurance and health insurance (for the period of March through May) only to entrepreneurs who, as at 29 February 2020, had less than 10 employees (as per the ZUS registers). In other words, ZUS relief softening the financial impact of the Covid-19 outbreak was only available to the smaller enterprises.

The second packet of emergency legislation intended to address the corona crisis, dubbed Shield 2.0, addresses this issue by amending art. 31zo of the Covid-19 Act so as to offer ZUS exemptions also to enterprises employing between 10 and 49 persons. In order to benefit, the given enterprise:

  • Must lodge an application with ZUS;
  • Have between 10 and 49 employees insured with ZUS as at 29 February 2020;
  • Have been registered as a ZUS contributions payer prior to 1 February 2020.

The exemption will cover outstanding contributions towards mandatory social insurance and health insurance due for the period of 1 March through 31 May 2020 in an amount corresponding to 50% of the aggregate value of outstanding contributions specified in the ZUS settlement declaration for the given month.

The key difference between the exemption for micro-enterprises and for small enterprises concerns its value. Micro-enterprises may benefit from a full exemption for 3 months, and small enterprisesonly a 50% exemption.

Shield 2.0 also includes the express provision that, when tallying their employee headcounts in the context of the exemption, employers should not include juvenile employees.

To state the obvious, the present expansion of eligibility for ZUS exemptions comes into effect already after the contributions for March fell due. This results in a disadvantage for:

  • enterprises which could not benefit from an exemption under the previous anti-crisis shield legislation and who duly remitted their social insurance contributions,
  • enterprises eligible for the exemption which are not keeping up with the legislative changes within the successive Shields.

Literal interpretation of art. 31zo indicates that the exemption is available only for contributions which have not been remitted yet.

The latest development, as reflected in the newly added art. 108a, is that enterprises which paid their ZUS contributions for March 2020 but qualify for the exemption may also avail themselves of this benefit by having their contributions refunded (in their entirety, or at 50%, as applicable) in accordance with the general social insurance laws.

Also, to date it was not clear whether the fact that an enterprise benefits from a ZUS contribution exemption ought to be regarded in terms of income accruing to such enterprise and taxed accordingly. The original Shield 1.0 addressed this question with respect to natural persons, providing that such a benefit shall not constitute taxable revenue, but no analogous provisions were laid down with respect to corporate income tax. Art. 31zx of the Covid-19 Act, as now amended, obviates such doubts, making it clear that the ZUS exemption shall not be taken as taxable income of a business enterprise.

 

Contact:

korona@gessel.pl

 

 

Katarzyna Lisowska

senior associate,
radca prawny

k.lisowska@gessel.pl