Costs of obtaining income for creative activities

In the legal state since 1 January 2018 the cost threshold for obtaining revenue from creative activities has been increased. The limit is now the upper limit first tax scale range – 85,528 PLN A year.

The increase in the limit of the amount to be taken into account was linked to the limitation of the activities which entitle to apply 50% the cost of obtaining revenue. The legislator introduced a closed catalogue, indicating the types of activity qualified as creative.

Synchronising folder Article 22(9b) Personal income tax laws were amended twice In 2018 What is the position of tax authorities and what case law regarding the application of increased costs of obtaining revenue from creative activities?

Introduction – definition of creative activities, legal status to 31 December 2017

Creative activities, subject to certain conditions under Article 22(9) Act on 26 July 1991 on personal income tax[1] (further u.p.d.o.f.) gives the opportunity to take into account the so-called increased flat-rate costs of obtaining revenue. According to the applicable 31 December 2017 content Article 22(9) u.p.d.o.f., the costs of obtaining some revenue were defined as:

1. for the payment of the creator for the transfer of the ownership of the invention, the topography of the integrated circuit, the utility model, the industrial design, the trade mark or the ornamental design — in height 50% revenue obtained, subject to Article 22(9a) u.p.d.o.f.;
2. for the licence fee for the transfer of the right to use the invention, the topography of the integrated circuit, the utility model, the industrial design, the trade mark or the design obtained in the first year of the licence from first the entity with which the licence agreement was concluded — in the amount of 50% revenue obtained, subject to Article 22(9a) u.p.d.o.f.;
3. for the use by authors of copyrights and performers of related rights, within the meaning of separate provisions, or for the provision by them of such rights, of 50% revenue obtained, subject to Article 22(9a) u.p.d.o.f., except that these costs are calculated on the basis of income less the premiums deducted by the payer in a given month for pension and sickness insurance referred to under Article 26(1)(2) point (b) u.p.d.o.f., which is based on this revenue.

Before the change occurred from 1 January 2018 (i.e. before the entry into force of the Act of 27 October 2017 amending the Personal Income Tax Act, the Corporate Income Tax Act and the Flat-rate Income Tax Act on certain revenues generated by individuals[2] , Possible use 50% the costs of obtaining revenue by the creators were subject to a quota limitation only. The cap on increased revenue costs was based on Article 22(9a) u.p.d.o.f. – 50% upper limit first tax scale range, i.e. 42,764 PLN.

To the cost of obtaining the revenue in question under Article 22(9)(1) and 2 the provisions of the Act of 30 June 2000 Industrial property law[3] , Further: p.w.p. (this is confirmed, among others, in the interpretation of the individual Director of KIS from 21 July 2017[4] ), a to the costs in question under Article 22(9)(3) the provisions of the Act of 4 February 1994 about copyright and related rights[5] (Further u.p.a.p.p.).

Costs of obtaining revenue from the payment of the creator for the transfer of the ownership of the invention, the topography of the integrated circuit, the utility design, the industrial design, the trade mark or the amalgamation design in the amount of 50% the revenue obtained was (and is still) applicable only if the payment of the right to transfer ownership was clearly indicated in the contract or other remuneration documents (Article 22(9)(1) This view is confirmed, among others, in the following interpretation of the IS Director in Katowice.

Individual interpretation of the Director of the Tax Chamber in Katowice 12 November 2013[6]

It should be noted that from the above mentioned Article 22(9)(1) u.p.d.o.f. it follows that the cost of obtaining income from the payment of the creator for the transfer of the ownership of the invention, topography of the integrated circuit, utility design, industrial design, trade mark or ornamental design is 50% revenue obtained.

As it shows from its content, it refers only to those situations where the remuneration of the inventor of the project involves the conclusion of a contract transferring ownership of the project.

Therefore, the provision in question only applies to the transfer of ownership of an invention [...] and not to the remuneration of the entrepreneur for the use of the invention.

Before 1 January 2018 doubts arose as to whether (and still raises the legal situation) the regulation Article 22(9)(1) u.p.d.o.f. concerns the right to a registered patent or the right to register a patent. This has been dealt with in the case law.

According to the judgment of the WSA in Warsaw with 23 March 2017[7] , entitlement in form 50% the cost of obtaining revenue does not relate only to those situations where the remuneration of the inventor of the project involves the conclusion of a contract transferring ownership of the project. This provision applies not only to the transfer of ownership of an invention, but also to the remuneration for the transfer to another entity of patent rights. [...]

It cannot be accepted that the legislator's intention is to make such a fundamental difference in the legal situation of taxpayers who are in an identical factual and legal situation because they have transferred and transferred to the employer the right to patent or have transferred this right under contract to deprive this first the right to determine 50% the cost of obtaining revenue.

It follows from the wording of the judgment cited that for tax purposes the right to obtain a patent should be compared with the right to a patent.

In practice, the scope of this application Article 22(9)(3) u.p.d.o.f. was relatively wide. To 31 December 2017 The catalogue of activities qualified as creative was open and the question of its character was the effect in the form of a work and the keeping of documentation allowing to identify created works and payment of the author's fee for creating the work. This situation favoured preferential clearing of creative taxpayers.

The definition of the song had to (and still should) be sought in u.p.a.p.p.p. In Content Article 1(1) u.p.a.p.p. indicates that the subject of copyright is every manifestation of creative activity of an individual nature, determined in any form, regardless of the value, purpose and manner of expression (the track).

Based on Article 1(2) u.p.a.p.p. The subject of copyright is in particular works:

• 1) expressed in words, mathematical symbols, graphic characters (literary, publicist, scientific, cartographic and computer programs),
• 2) plastic,
• 3) photographic,
• 4) soldering,
• 5) industrial design,
• 6) architectural, architectural, urban and urban,
• 7) musical and verbal-musical,
• 8) stage, stage-music, choreographic and pantomime,
• 9) audiovisual (including film).

The catalogue indicated by the watch. 1 section 2 the u.p.a.p.p. is only sample and auxiliary.

The track has been the subject of copyright since it was established, even though it was unfinished. As indicated in the judgment of the SA in Białystok of 30 March 2016[8] , even unfixed theatrical staging, reciting or performing a musical work are works within the meaning of Article 1(1) u.p.a.p.p.

According to Article 4(3) u.p.a.p. of copyright are not published patent or protective descriptions. This means that there are no fees for the creation of works which constitute an industrial property right (e.g. invention) and have been patented, but only it is possible to pay for the transfer of the right to an invention or utility model (Article 22(9)(1) u.p.d.o.f.).

The concept of a work for tax purposes should be interpreted strictly – in case of doubt, it must be assumed that a given activity is not a work. This was indicated in the NSA judgment of 26 April 2017[9] :

„Provision Article 22(9)(3) u.p.d.o.f. is the lex specialis in relation to the general cost-setting principle for obtaining the income from the employment relationship indicated under Article 22(2) u.p.d.o.f. Therefore, only if it is clearly established that the revenue is covered by copyright will it be possible to apply increased revenue costs. In any other case, the determined costs should be used under Article 22(2) u.p.d.o.f.

[…] for the application of the income cost standard, specified under Article 22(9)(3) u.p.d.o.f., it is necessary to distinguish the remuneration into the part related to the performance of the labour obligations and the part defining the fee relating to the use of copyright for the operation of the work in a certain manner and in a certain field. It is indicated that the employer's documentation should enable the separation of the part of the working time which is intended for creative work and the link of that time with the actual work created or intended to be created and, finally, whether the fee was paid in connection with its operation.’

The increased revenue costs may be used only during the month of payment of the fee for the creation of the work. This follows, inter alia, from the following individual interpretation.

Individual interpretation of the Director of National Tax Information from 11 September 2017[10]

The use of increased revenue costs may only take place in the month of payment of the fee. There may be a situation that the fee will be paid for the transfer of rights to the work once, even though the work lasted a whole tax year (it only arose one track in the meaning of u.p.a.p.p.). [...]

It should therefore be stressed that, by distinguishing the fee, it is not possible to recognise the situation where the fee is defined as a percentage of the total working time of the worker. Performing creative work does not automatically mean the creation of a work and the transfer of rights from it to an employer.

Working time is not an indication of the value of income to which it is entitled 50% the cost of obtaining income.

It is important that the work is actually created, which should be proven (the provisions do not restrict the possibility of evidence in this respect by exchanging evidence that these circumstances can be proven – for example, records of works covered by copyright) and that the employer paid a specific value for the acquisition of the work.

This is illustrated in the following example.

The employee under the employment contract was tasked with creating one The song. Work on the piece took almost a whole calendar year, during this period the employee did creative work, but the same devotion of the work occurred at the end of the year. Only after giving the work did the employer pay the employee the fees due for producing the work.

The increased revenue costs can only be applied to the fee for the creation of the work and only during the period when the fee was paid. The remuneration for the remaining months cannot be applied to this worker's increased income costs, even though he did creative work during that period.

Even though the cost of obtaining revenue has been increased for years, it has not been possible to determine whether a flat-rate salary for creative work can be used 50% costs. This problem was highlighted in the following individual interpretation.

Individual interpretation of the Director of the Tax Chamber in Poznań with 15 November 2016[11]

Where, as indicated by the applicant in the application, the remuneration of the programmers consists of two components (essential remuneration for the work of a given amount and a fixed amount of a flat-rate copyright fee), independent of each other, the flat-rate copyright fee may be applied 50% the cost of obtaining income.

At the same time, it does not seem appropriate to divide the remuneration ‘upfront’ into the part resulting from the remuneration for the transfer of the abovementioned rights to works and other working activities, since it does not reflect the circumstances of whether and how many works the employee created in a given month (e.g.

when the employee was on leave or sick leave all month, he could not in principle create works to which the rights would subsequently be transferred).

However, the above position confirms that under the rules applicable to 31 December 2017 in certain situations, a flat-rate remuneration for creative work was allowed as a basis for application 50% the cost of obtaining revenue.

The only important circumstance to be verified when checking the accounts was to receive a fee for the actual production of the work. The lump sum, as indicated, among others, by the WSA in Gdańsk in the judgment of 31 January 2017[12], was a justified form of remuneration for a work for which working time is irrelevant.

In an individual interpretation of 14 April 2016[13] Director of IS in Bydgoszcz stated that the 50% the cost of obtaining income is not applicable to remuneration, e.g. for incapacity for work or leave.

The justification of the position presented by the Director of IS may raise doubts, as the essence of the flat-rate remuneration is the absence of the impact of leave and days of incapacity for work on the amount of remuneration.

If the possibility of flat-rate determination of the royalties has already been allowed, the only circumstance affecting the amount of the lump sum is to receive a fee for the actual creation of the work during a given period.

If, on the other hand, a fee has been paid for the creation of a work during a given period, the number of days of leave and other incapacity for work remains irrelevant to the amount of the lump sum, because the fee is due for the creation of a work and not for the duration of work on the work, as indicated by numerous decisions of the administrative courts[14] and individual interpretations[15].

In addition, it should be pointed out that in entities where the essence of the work is creative work other than lump sums, it is impossible in practice to determine the fee, and the need to make the fee dependent on the number of works created would mean for those workers who create multiple works in a single accounting period, and the essence of their work is creative work, in practice excluding the use of revenue costs 50%.

In the legal state applicable to 31 December 2017 Many employers used increased costs to obtain income from creative activities on the basis of work time records for creative works or on the basis of the percentage of working time allocated to creative works as defined in the contract of employment.

Such accounting for increased revenue costs has always been regarded by tax authorities and administrative courts as incorrect. However, it was widely used in practice because of the fact that checks on the use of higher revenue costs were extremely rare.

Definition of creative character activity – changes from 1 January 2018

In the legal state since 1 January 2018 the cost threshold for obtaining revenue from creative activities has been increased. The limit is now the upper limit first the tax scale range, i.e. 85,528 PLN A year. The increase in the limit of the amount to be taken into account was linked to the limitation of the activities which entitle to apply 50% the cost of obtaining revenue. The legislator introduced a closed catalogue, indicating the types of activity qualified as creative.

As applicable 1 January 2018 content Article 22(9) u.p.d.o.f., the cost of obtaining some revenue is determined by:

1. for the payment of the creator for the transfer of the ownership of the invention, the topography of the integrated circuit, the utility design, the industrial design, the trade mark or the ornamental design, in the amount of 50% revenue obtained, subject to Article 22(9a) u.p.d.o.f.;
2. in respect of a licence fee for the transfer of the right to use the invention, the topography of the integrated circuit, the utility design, the industrial design, the trade mark or the ornamental design, obtained In the first year of the licence from first the entity with which the licence agreement was concluded — in the amount of 50% revenue obtained, subject to Article 22(9a) u.p.d.o.f.;
3. for the use by authors of copyrights and performers of related rights, within the meaning of separate provisions, or for the provision by them of such rights, of 50% revenue obtained, subject to Article 22(9a)(9b) u.p.d.o.f., except that these costs shall be calculated on the basis of income less the premiums deducted by the payer in the month in question for pension and sickness insurance in question under Article 26(1)(2) point (b) u.p.d.o.f., which is based on this revenue.

The basic change is the addition Article 22(9b) u.p.d.o.f. in terms of the cost of obtaining revenue from the use of copyrights by authors and performers of related rights, within the meaning of separate provisions, or their provision of those rights. According to the current 1 October 2018, sound Article 22(9b) u.p.d.o.f., recipe Article 22(9)(3) U.p.d.o.f. shall apply to revenue generated by:

1. creative activities in the fields of architecture, interior architecture, landscape architecture, construction engineering, urban planning, literature, art, industrial design, music, photography, audio and audiovisual production, computer programs, computer games, theatre, costume design, stage design, directing, choreography, artistic soldering, folk art and journalism,
2. artistic activities in the fields of acting, stage, dance and circus art, as well as conducting, vocal and instrumental arts,
3. audiovisual and audiovisual production,
4. public activities,
5. museum activities in exhibition, scientific, popularizing, educational and publishing fields,
6. maintenance activities,
7. the subsidiary law in question under Article 2(2) u.p.a.p.p.ut, for the development of another person's work in the form of translation,
8. R & D, scientific, scientific and educational, research, research and teaching activities in the university.

Synchronising folder Article 22(9b) u.p.d.o.f. has been modified twice over a period 2018 by:

1. Act with 15 June 2018 amending the Personal Income Tax Act, the Corporate Income Tax Act and the Flat-rate Income Tax Act on certain revenues generated by individuals[16] – with respect to the original regulation 1 January 2018 it has arranged and significantly expanded the revenue source catalogue with revenue obtained from: construction engineering, industrial design, audio production, computer games, artistic activities in the field of acting and stage art, museum activities in the field of exhibition, popularizing, education, publishing, preservation, revenue from the subsidiary law in question under Article 2(2) u.p.a.p. to develop another person's work in the form of translation, as well as scientific activities and teaching activities conducted at the university;
2. Act with 3 July 2018 – Provisions introducing the Act – Law on Higher Education and Science[17] (Further in u.p.p.sz.w.n.), it introduced only technical changes and expanded the revenue source catalogue by research activity.

These modifications create additional difficulties in determining whether a particular activity falls within the scope of the provision Article 22(9b) u.p.d.o.f. and therefore – whether the increased cost of obtaining revenue can be applied to it on the basis of Article 22(9)(3) u.p.d.o.f. At this point, it should be pointed out that in accordance with the transitional provisions of the amending laws, changes in the catalogue of creative activities apply retroactively from 1 January 2018

A major problem in applying higher revenue costs is the absence of statutory definitions or the scope of the activities which entitle them to apply. The exception is R & D. As defined under Article 5a(38-40) u.p.d.o.f., R & D means creative activities involving research or development, undertaken systematically to increase knowledge resources and use knowledge resources to create new applications.

It should be noted that 1 October 2018 (as a result of the entry into force of u.p.p.w.n., the definitions of statutory research and development work have changed. According to the definition applicable to 30 September 2018, scientific research should have understood:

• 1) Basic research – original research, experimental or theoretical, undertaken primarily to gain new knowledge of the foundations of phenomena and observed facts, without a direct commercial application;
• 2) applied research — research undertaken to acquire new knowledge, focusing primarily on practical application;
• 3) Industrial research – research to acquire new knowledge and skills to develop new products, processes and services or to make significant improvements to existing products, processes and services.

These studies shall take into account the creation of component elements of complex systems, the construction of prototypes in a laboratory environment or in an environment simulating existing systems, in particular to assess the suitability of the technologies concerned, as well as the construction of the pilot lines necessary for these studies, including evidence for generic technologies.

According to the new sound Article 5a(39)(40) u.p.d.o.f. – from 1 October 2018 – Research is:

• 1) basic research within the meaning of Article 4(2)(1) U.P.S.N., i.e. empirical or theoretical work aimed primarily at gaining new knowledge of the basis of phenomena and observed facts, without a direct commercial application;
• 2) application tests as defined Article 4(2)(2) U.P.S.N., i.e. work to gain new knowledge and skills geared towards developing new products, processes or services or making significant improvements to them.

Through development work to 30 September 2018 it should be understood to acquire, combine, develop and exploit currently available knowledge and skills in science, technology and business, and other knowledge and skills for production planning, and to create and design new, modified or improved products, processes and services, excluding work involving routine and periodic changes to products, production lines, manufacturing processes, existing services and other ongoing operations, even if such changes are of an improvement nature, in particular:

1. development of prototypes and pilot projects and demonstrations, testing and validation of new or improved products, processes or services in an environment that is a model of conditions of actual operation whose main purpose is to further technical improvement of products, processes or services the final shape of which has not been defined,
2. the development of prototypes and pilot projects that can be used for commercial purposes, where the prototype or pilot project is a finished product ready for commercial use and its production for demonstration and validation only is too costly.

From 1 October 2018 development work in understanding Article 4(3) u.p.p.w.n. is an activity involving the acquisition, merger, formation and use of currently available knowledge and skills, including IT tools or software, for the production and design and creation of modified, improved or new products, processes or services, excluding activities involving routine and periodic changes to them, even if such changes are of an improvement nature.

Despite not being sent directly under Article 22(9b) u.p.d.o.f. to this definition, there should be no doubt that under the provisions Article 5a(38-40) u.p.d.o.f. should be verified whether we are dealing with R & D activities in a given case. In other cases, definitions from other branches of law remain to be used.

One example of this is journalism. According to Article 7(2)(5) Act on 26 January 1984 Press law[18] (Further p.p.), the journalist is a person who is involved in editing, creating or preparing press materials, who is working with or engaged in such activities for and under the authority of the editorial board.

There are also situations where there is no statutory definition of a given activity. For example, no computer program has been defined in Polish law, which also makes it difficult to apply higher revenue costs. Then reference should be made to non-normative definitions[19].

The possibility of assigning remuneration to the activity of creative character

First, Once again, it should be firmly stressed that the accounting of the increased costs of obtaining revenues on the basis of working time has always been considered incorrect by both tax authorities and administrative courts. There has been no change in the approach of tax authorities (as many doctrinal representatives claim), only tax checks have begun with payers. This was highlighted by the Director of KIS in the following individual interpretation, issued under the previous provisions.

Individual interpretation of the Director of National Tax Information from 11 September 2017[20]

By distinguishing the fee, it cannot be considered that the fee is defined as a percentage of the total working time of the employee. Performing creative work does not automatically mean the creation of a work and the transfer of rights from it to an employer.

Working time is not an indication of the value of income to which it is entitled 50% the cost of obtaining income.

It is important that the work is actually created, which should be proven (the provisions do not restrict the possibility of evidence in this respect by exchanging evidence that these circumstances can be proven – for example, records of works covered by copyright) and that the employer paid a specific value for the acquisition of the work.

Likewise, the NSA in judgment of 11 March 2015[21] stated that for the application of the income cost standard, it is necessary to distinguish the remuneration into the part related to the performance of labour obligations and the part defining the fee relating to the use of copyright for the operation of the work in a certain way and in a certain field. There is not enough award in the contract for the work of part of the working time for creative work, as such distinction does not indicate whether any work was actually created and whether fees were paid in connection with its operation.

Individual interpretations should be the way to obtain a clear understanding of how to determine whether higher revenue costs can be applied in a given situation.

However, the Director of the CIS in individual interpretations consistently refuses to resolve taxpayers' doubts about the classification of a particular work as a work within the meaning of u.p.a.p.

and does not decide whether the activity described in the applications is included in the catalogue of activities entitled to apply the increased cost of obtaining revenue. The Authority shall justify its decision on the grounds that these are circumstances relevant to the facts presented.

However, it should be pointed out that such a position of the tax authorities is incompatible with the case law of the administrative courts, since determining whether a work is a work or not requires an interpretation of the law, and according to the case law of the administrative courts, the tax authority is in a position to interpret the law not only contained in tax laws, but also in any other law in so far as it is necessary to assess the tax situation of the taxpayer, provided that the question in its interpretation concerns the interpretation of tax law and does not concern only non-tax laws.[22].

Accordingly, if an assessment of the facts set out in the request for an individual interpretation requires an analysis other than tax law of the fields of law, the tax authority is not only entitled to it, but also obliged to do so, as it will not be able to carry out an overall and correct assessment of the applicant’s position without this.

In spite of the clear case-law of the administrative courts, the tax authorities have consistently refused to resolve this issue, claiming that this is not a legal assessment of the applicant but an element of fact. In these circumstances, provision shall be made to leave the application unexamined.

Such a decision can be appealed to the administrative court, but this prolongs the interpretation by several years.

If taxpayers decide to submit an application in which they will interpret the provisions of copyright and the definition of activities giving rise to the increased cost of obtaining revenue, such an interpretation shall in no way exercise the protective function provided for individual interpretations.

Negative interpretations of the possibility of higher costs of obtaining revenue from creative activities

In the new state of the law, since 1 January 2018, on the possibility to apply increased revenue costs on the basis of Article 22(9)(3) u.p.d.o.f. is issued in principle only negative interpretations, denying payers the possibility of using increased costs of obtaining revenue from creative activities.

So decided the Director of KIS, among others, in an individual interpretation from 23 February 2018[23], concerning a company operating in the IT industry. The company employs IT specialists on the basis of employment contracts, who create works as defined by u.p.a.p., which are then transferred to the employer.

The company therefore wanted to introduce a record which would clearly specify the percentage of remuneration due to the employee as a fee for creative work.

In addition, the company would keep a record of works (repository) in which employees would register their creative activities and works which would arise in the course of performing these creative activities in a given month and their location.

The company asked whether it could apply 50% the cost of obtaining revenue for the part of the remuneration which constitutes the fee for the creation of the work.

The Director of KIS found the position of the company incorrect.

According to the Authority, application 50% the cost of obtaining revenue is only possible if the employer separates the part of the remuneration due for the disposition or exercise by employees of the property rights to the works created by them (honorarium) from the remaining remuneration for the duties performed, which are not of a creative nature, but by the separation of the fee it cannot be recognised that the payer determines them as a percentage.

Only a clear determination of the value of the fee in a specific amount for the work actually carried out will it be possible to apply to such calculated value part of the cost of obtaining revenue in the amount specified under Article 22(9)(3) u.p.d.o.f.

A similar position was taken by the Director of KIS in an individual interpretation with 20 February 2018[24]. The performance, on the basis of the employment relationship, of activities protected by both copyright and non-copyright law requires documentation of the value of the remuneration of the use of copyright.

Only the clear distinction and documenting of works – copyrighted works – and the remuneration paid in this respect gives rise to application 50% the cost of obtaining revenue. It is essential that the creator achieves income directly linked to the exercise of certain copyrights or related rights or the provision of such rights.

In practice, this means that, according to the Director of KIS, it is necessary to value copyright rights for each created work and to pay remuneration for this work in variable value, depending on the value of copyrights for each work.

The Authority therefore excludes the possibility of using increased revenue costs for workers with creative activities.

There is no other possibility in the business of new technologies, computer programs or IT industry to pay employees whose essence of the work is creative activity, a fee other than a lump sum set by the amount or percentage.

Positive interpretations of work contracts

Analyzing the content released In 2018 individual interpretations of increased revenue costs on the basis of Article 22(9)(3) u.p.d.o.f., it can be concluded that the new criteria for the application of these rules developed by the Director of KIS can only be met by persons who obtain revenue from the transfer of copyright to individual works created under a work contract, where all remuneration concerns the transfer of copyright

This is confirmed by individual positive individual interpretations issued after the amendment of the legislation from 1 January 2018 In an individual interpretation of 26 April 2018[25] The Director of KIS indicated that since the persons with whom the applicant has concluded works contracts are creators, their works are works within the meaning of u.p.a.p.p.ut, and the remuneration for works contracts is a full remuneration for the transfer of property rights, the applicant may apply to contractors of works contracts 50% revenue costs according to Article 22(9)(3) u.p.d.o.f.

Similarly, in an individual interpretation of 20 Apr. 2018[26] The Director of KIS considered that since the applicant has performed the work on the basis of a contract that clearly indicates the amount of remuneration for the creation of the work, he is therefore entitled to apply the increased revenue costs.

This means that, according to the Director of KIS, increased revenue costs on the basis of Article 22(9)(3) u.p.d.o.f. in practice, it is only possible to apply to minor works contracts where the entire remuneration relates to the transfer of copyright, or where the work contract relates to a particular work or to a maximum of several works and specifies the remuneration for the transfer of copyright for each work.

As shown by the above-mentioned individual interpretations issued in the new state (from 1 January 2018), use of increased revenue costs on the basis of Article 22(9)(3) u.p.d.o.f. has been very limited – in principle only to works contracts.

____________________________

2 Journal of Laws of 2017, item 2175.

4 reference no. 0114-KDIP3-2.4011.146.2017.2.MK, Legalis.

6 reference no. IBPBII/1/415-790/13/Asz, Legalis.

7 reference no. III SA/Wa 794/16, Legalis.

8 reference no. III AUa 1115/15, Legalis.

9 reference no. II FSK 3865/14, Legalis.

10 reference no. 0113-KDIPT3.4011.220.2017.2.KSM, Legalis.

11 reference no. ILPB1-1/4511-1-159/16-2/APR, Legalis.

12 reference no. I SA/Gd 1410/16, Legalis.

13 reference no. ITPB4/4511-40/16/MP, Legalis.

14 For example, the judgement of the WSA in Gdańsk 31 January 2017, reference no. I SA/Gd 1410/16, Legalis; judgment of the WSA in Gdańsk 7 December 2016, reference no. I SA/Gd 1209/16, Legalis.

15 For example, the interpretation of the Director of KIS from 4 July 2017, reference no. 0115-KDIT2-1.4011.103.2017.1.MST, Legalis.

16 Journal of Laws of 2018, item 1291

17 Journal of Laws of 2018, item 1669.

19 Even Wikipedia can be such a source. According to the definition there, the computer program is a sequence of symbols describing the execution of calculations according to certain rules, called programming language. The program is usually performed by a computer (e.g. a website display), usually directly if it is expressed in a language understood by the machine, or indirectly, when it is interpreted by another program (interpreter). see pl.wikipedia.org/wiki/computer program (access: 19 October 2018).

20 reference no. 0113-KDIPT3.4011.220.2017.2.KSM, Legalis.

21 reference no. II FSK 459/13, Legalis.

22 Cf. NSA judgment of 15 October 2014, reference no. I FSK 1456/13, Legalis; judgment of the WSA in Gliwice of 10 August 2011, reference no. I SA/Gl 272/11, Legalis; judgment of the WSA in Białystok of 6 May 2014, reference no. I SA/Bk 137/14,

23 reference no. 0115-KDIT2-1.4011.366.2017.2.MK, Legalis.

24 reference no. 0114-KDIP3 3.4011.544.2017.2.AK, Legalis.

25 reference no. 0115-KDIT2-1.4011.71.2018.2.AS, Legalis.

26 reference no. 0114-KDIP3-3.4011.75.2018.2.IM, Legalis.