Posting an employee from Ukraine to Poland

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Karolina BARTKOWIAK
Junior Tax Manager at RSM Poland
 

Due to the ongoing war in their homeland, many Ukrainian employers have decided to post their employees to work in Poland. However, this move has specific implications in terms of personal income tax and social insurance. What must a Ukrainian entrepreneur remember while hiring employees residing in Poland?

The concept of posting should be understood as assigning an employee to perform, for a limited period, employee duties in the territory of a country other than the country in which the employee habitually works.

Posting an employee from Ukraine to Poland – how to pay social insurance contributions

In terms of social insurance law, the Agreement on social security concluded on 18 May 2012 between Poland and Ukraine (hereinafter referred to as: the Agreement) is of key importance. Article 6 of the Agreement states a general rule according to which the employee is, in principle, subject to the social security legislation of the state in which they perform work.

Additionally, Article 7 (1) of the Agreement provides for an exception:

If an employer registered in Ukraine sends a person employed by them to Poland (to perform work on behalf of that employer), then that person will be subject to the legislation of Ukraine – provided that the expected period of work does not exceed 24 months. If the period of work in Poland is extended to more than 24 months, the legislation of Ukraine will continue to be applied for the consecutive period not exceeding 36 months, provided that the competent authorities in Poland grant their consent.

This means that posting an employee from Ukraine to perform work for a Ukrainian employer in Poland does not automatically result in the entrepreneur being obliged to pay contributions to the Polish Social Insurance Institution. If the deadlines specified in the Polish-Ukrainian agreement on social security are not exceeded, the applicable law in terms of social security will continue to be the Ukrainian law.

Who should pay PIT income tax and where?

For the tax assessment regarding PIT, the starting point shall be the provisions of the Convention concluded on 12 January 1993 between Poland and Ukraine on the avoidance of double taxation and the prevention of tax evasion in the field of income and property taxes (hereinafter: UPO PL-UA).

Article 15 of the Convention states that if an individual with tax residence in one country (in this case Ukraine) obtains income from paid work performed in Poland – then, as a rule, this income is taxed both in Poland and in Ukraine, and in order to reduce the tax burden, the appropriate method of avoiding double taxation is exercised (Article 24 of UPO PL-UA).

Article 15 (2) of UPO PL-UA, however, provides for an exception to this rule, from which it follows that the income tax is still paid in the country of tax residence (Ukraine), if the following conditions are jointly met:

1. the recipient of remuneration resides in Poland for a total of no longer than 183 days in a given calendar year, and
2. the remuneration is paid by an employer who is not established in Poland, and
3. the cost of the employee’s remuneration is not borne by the permanent establishment or fixed establishment owned by the employer in Poland.

What is the conclusion? If a given employee retains – in accordance with the provisions in force in Ukraine – Ukrainian tax residence and at the same time the conditions specified in Article 15 (2) of UPO PL-UA are met, then we should continue to pay personal income tax in Ukraine.

In turn, the lack of fulfilment of any of the above-mentioned conditions (i.e. the employee’s stay in Poland for a period longer than 183 days in a given calendar year) means that the income obtained from work performed in Poland should be settled both in Poland and in Ukraine (taking into account the appropriate method of avoiding double taxation).

Pursuant to Article 44 (3d) of the Act of 26 July 1991 on personal income tax – the payer of income tax advances in Poland will then be the employee himself.

PIT and Social Insurance Institution settlements made by Ukrainian employees are the tip of the iceberg

Considering the complexity of the subject, we would like to point out that this publication does not cover all issues related to the posting of employees from Ukraine to perform work in Poland. If you have more questions and would like to receive individual advice – please contact us. Our accountants and tax advisors will be happy to help you find your feet in the maze of Polish regulations.