Controversy related to the accounting of business travel. Part. 1 – diet and ‘national sections’ of foreign travel

Given the complexity of economic relations and the differences in the facts in life, it is perfectly normal that regulations cannot regulate everything. Kazuistics is not recommended. Our law is sufficiently "regulated".

However, in the case of rules on the clearing of business trips, they are so vague and inconsistent that changes are requested. The legislator had the opportunity to do so by amending the provisions six Years ago.

The ideas that have emerged since then to account for these journeys are contrary not only to common sense, but also to fundamental principles of law interpretation. In this part of the cycle, attention was given to the issue of determining the amount of diet when travelling abroad and so-called national sections.

1. National and foreign missions

Content section 2 point 1) Regulation of the Minister of Labour and Social Policy 29 January 2013 on the claims owed to an employee employed in a state or local government budget entity for business travel (hereinafter: ‘rPS’ or ‘the Regulation on business travel’) 1 , for domestic and foreign travel carried out within the time and place specified by the employer, the worker shall be entitled, inter alia, to a diet.

In this respect, the legislator has identified separately the amount and method of fixing the allowances for domestic travel and separately for foreign travel. Without clearly defining what domestic travel is and what foreign travel is, the legislator only indicated Under section 1, that the Regulation lays down the amount and the conditions for determining the fees due to the staff member for the business trip:

1) in the country, hereinafter referred to as ‘national journey’;

1. abroad, hereinafter referred to as ‘foreign travel’. It follows from the above that a domestic journey is a domestic business trip, and a foreign journey is a foreign trip. For further consideration, what is a business trip? What is worth knowing, the provisions do not contain a general definition of the legal concept[2]. Surely it is not a recipe Article 775(1) Act on 26 June 1974 -Labour Code (hereinafter: k.p.)[3]. It states that ‘a worker performing a task outside the place where the employer’s seat is situated or outside a permanent place of work shall be entitled to compensation for costs related to the business trip’. A business trip shall be understood as carrying out, at the employer's direction, a business task outside the place where the permanent place of employment of the worker is located or where the employer's seat is located.

It is therefore necessary to meet certain conditions together for a business trip. This departure order should contain certain elements, including the destination of the departure – both the place and the task to be performed by the employee, the place of departure and the end of the journey.

Supreme Court in judgment of 11 October 2005 4 defines the purpose of the journey, the place of business and the source of the duty of the mission: ‘(...) After first, the purpose of the business trip is not to carry out permanent work in another locality, but to carry out a business task there.

Thus, this assumes a certain incident and temporary stay at the place where the task is carried out. After second, the place where the task is carried out must be a place other than that in which the employer's seat is situated or the permanent place of employment of the worker.

After third, the source of the obligation to perform the task (receiving a business trip) is an instruction which should each time specify the task which the employee is required to perform and specify the time limit and place of performance.

An instruction as an activity concerning work – which is specific to the way, place and time of its execution under the conditions of employment – does not, of course, lead to a change in the content of the employment relationship. Therefore, it cannot change the permanent place of employment of a worker.

After fourth, the place of commencement and termination of the business trip shall be determined by the employer. These may be, outside the place where the employer is established and outside the place of permanent employment, also the place of permanent or temporary residence of the worker. ...’.

In the light of the above, a national service journey will be a journey with a mission carried out within the country. Geographically, the territory of the Republic of Poland is a fairly dense, “monolithic” area.

It should be remembered, however, that if for some reason a person on a journey would have to cross the border of Poland, this does not mean that he is travelling abroad (for example, an employee is going from Żywiec to Zakopane by Slovak Names).

It therefore appears logical that a travelling worker whose purpose is to carry out a business activity abroad undertakes a foreign journey. If you travel in such a car/airplane, the destination is not to reach the border/airport.

When travelling abroad in conjunction with travelling in Poland, the rules on domestic travel apply accordingly, but for the purposes of calculating the amount of allowances. As per content section 7 section 2 rPS the amount of the allowance is calculated for the time from the start of the national journey (departure) until the return (return) after the performance of the business task.

When travelling in the territory of a country preceding a foreign trip, it is difficult to recognise that we are dealing with a return from a domestic journey after the task. Foreign travel only ends a section of the journey carried out on the territory of the country, following the journey outside the Polish border. In addition, the employee usually receives one an order to travel for all sections of the service, regardless of the type of delegation (national or foreign).

Pursuant to section 21 of the business travel regulation, “where a foreign trip is combined with travel within the country, the provisions of Chapter 2 apply accordingly” (Chapter 2 rPS deals with the calculation of diets for domestic travel, a reminder of cars.). This is ‘appropriate’, which does not mean that we are dealing with two additional domestic journeys. The time of the business trip, which is calculated in total only for the calculation of the amount of the allowance due, shall be calculated for the time from the start of the domestic journey (exit) until the return (return) after the performance of the business task (section 7 point 3 rPS). For the purposes of calculating the amount of the dietary component, according to the content section 12 RPS, the time of foreign travel shall count when it is made by means of communication:

• 1) land, from the moment of crossing the state border on the way abroad to the moment of crossing it on the way back to the country;
• 2) air – from the moment the aircraft takes off on its way abroad from the last airport in the country to the moment the aircraft lands on its way back to first airport in the country;
• 3) from the moment of departure of the ship (promium) from the last Polish port to the moment of entry of the vessel (promium) on the way back to first Polish port.

In the case of foreign travel, we have a diet due only for a foreign trip, which consists of an amount calculated according to the rules laid down Under section 13 (in Chapter 3 rPS) and section 7 (Chapter 2 rPS).

1. Three travel within the framework one A trip?

Another position is taken by the Ministry of Labour and Social Policy. According to officials, the episode of the national trip – correspondingly preceding the start of the foreign trip and taking place after crossing the Polish border on the way back – should be treated separately, meaning that the time of these trips would not be subject to aggregation.

For the record, according to the contents section 7 section 2 the allowance is calculated for the time from the start of the national journey (departure) until the return (return) after the performance of the duty as follows:

• 1) (a) less than 8 hours – no diet,
• (b) from 8 to 12 hours – entitled 50% diet, c) above 12 hours – is entitled to a full allowance;

1. if the journey lasts longer than a day, a full-height and incomplete-but started-a-day allowance shall be granted for each day:

(a) to 8 hours – entitled 50% diet,

(b) above 8 hours – you have a full diet.

Starting a foreign trip at the time of crossing the Polish border, in the opinion of the ministry, means stopping the duration of the national trip. This opinion was expressed, among others, by the Legal Department of the Chief Labour Inspectorate.

5 , which considered that national sections of foreign business travel should be treated separately unless they fall within the same time of journey (sic!), then they can be considered as a whole.

The letter stated that a worker travelling on a foreign business trip during which one it reaches the border of the State, and in another day after the end of the foreign journey returns from the border of the State to the place established by the employer as the place where the delegation ends, takes place two domestic travel and one Foreign travel.

This position means that only if within 24 hours (day of travel counted as another 24 hours) there will be an crossing of the border to travel abroad and a re-crossing of the border, ‘national sections’ add up (for example, if a worker is travelling by car to Berlin and back to Białystok and within the time limit 24 hours He's making it. two cross the border of Poland twice). The Supreme Administrative Court also expressed a similar view in its judgment of 22 March 2000 6 .

The GIP Legal Department introduced a condition/distinguishing which does not result from any provision. There is no provision that states that: ‘unless they fall into the same age of travel’. This contradicts the fundamental principles of the interpretation of the law, including the rule of lege non distinguente[7].

Such a position would mean, in turn, that any crossing of the Polish border with another country during a foreign trip activates a new ‘foreign travel section’ and thus the right to a diet – 1/3 diet when this time does not exceed 8 hours 8 (For example, employees in film production carry out pictures (a film plan) in Germany, but for savings they have a hotel base on the Polish side.

The purpose of the trip is to record material/film outside the country. Workers often cross the border during the day, and the journey itself covers the period two weeks).

Interestingly, just as in the letter from 3 February 2009 The Ministry of Labour and Social Policy concluded that: "(...) The total duration of the journey (...), according to the Department, can be taken into account in the calculation of allowances due to a staff member for a foreign journey combined with travel across the country.

21 May 2013 9 The Ministry changed its mind and considered that ‘in the case of business trips combined with domestic travel, national travel should be treated separately. According to the Ministry, starting a foreign trip at the time of crossing the Polish border means stopping the duration of the national trip.

It therefore appears that the interpretation of the above issue should lead to the conclusion that national sections of foreign missions should be treated separately.’ The view of the Ministry of Labour on the methodology of dietary determination for national sections of foreign travel was at one time more liberal than the position of the State Labour Inspection.

The practice of applying rules is that some employers treat each section of the national part of foreign travel separately.

Others, on the other hand, add up the hours of national episodes of foreign travel if it takes place in the same age of travel, acting undoubtedly in the benefit of workers, and often this is the result of convenience in the way the amount of the diet is calculated, or yes, and not otherwise the "configured" software.

There is also a known interpretation of the provisions in which the ‘return national section’ is treated as a journey during the next day of travel, which justifies the use of the method of calculating the diet in question Under section 7 section 2 point 2 rPS.

3. New – old department post

Not long ago, in response to the parliamentary inquiry No. 592 on the interpretation of the rules on diets for domestic and foreign travel, State Secretary at the Ministry of Family, Labour and Social Policy in a letter from 29 June 2016 concluded that, in the absence of explicit provisions of the Regulation on business travel, the employer could regulate this issue in company rules in a different way, which is more beneficial to employees than the official posts (!): "There are no legal obstacles to the establishment of the right to diet for national journeys, respectively preceding the start of foreign travel and taking place after crossing the Polish border on the way back".

Resort hasn't discovered America.

An employer outside the budgetary sphere may, according to Article 775(3) k.p., determine on their own terms the conditions for paying staff duty for business trips within and outside the country, including the amount and conditions for paying allowances, by means of collective agreements, remuneration regulations or employment contracts.

The above is a reflection of the so-called principle of benefit in force in labour law, which allows the employment conditions of the employee to be shaped in a more favourable way than is apparent from the rules of common law (laws and regulations).

The legal basis for its application is Article 9 k.e., which provides that the provisions of the provisions of the institutional provisions (statutes) must not deviate from the regulations and regulations.

The problem is that the principle of benefit applies First, to better regulate the benefits or rights of the employee. Its object is generally not the methodology for determining (calculation) certain benefits. The problem is the potential tax effects of the methodology used.

According to the provision Article 21(1)(16) Act on 26 July 1991 on income tax on individuals (hereinafter: u.p.d.o.f.) 10 income tax free are the allowances and other charges for the employee's business travel time – up to the amount specified in the separate laws or provisions issued by the Minister responsible for labour matters on the amount and conditions for the determination of the fees due to the employee employed in the state or local government unit of the budgetary sphere, for business travel within and outside the country.

Does this position of the ministry mean that, if the employer so determines and when calculating the amount of the foreign travel allowance, he will treat travel time in Poland as one „The national section, which will at the same time give in some cases the right to a higher diet, will also be exempt because (quot) “there are no explicit provisions of the Regulation”? Not at all. In writing, the ministry kindly informs that, in the light of:

• section 2 section 1 point 15 Regulation of the Minister of Labour and Social Policy 18 December 1998 on detailed rules for determining the basis for the assessment of pension contributions 11 , the contributions are not based on the allowance and other charges for the employee’s business trip, up to the amount laid down in the legislation on the amount and conditions for the determination of the fees due to the employee employed in the state or local government budget area, for the business trip within the country and abroad; - Article 21(16) point a of the Act of 26 July 1991 on personal income tax (Journal of Laws of 2012, item 361 as amended) income tax free shall be the allowances and other charges for the staff member's time of business travel up to the amount specified in the separate laws or provisions issued by the Minister for Labour on the amount and conditions for the determination of the fees due to the staff member employed in the state or local government budget area, on business trip within and outside the country.

4. Conclusion

The correct interpretation of the law supports the principle of summing up the time spent in the country when travelling abroad for calculation purposes one from the components of the diet for travelling abroad only. This should not raise any doubt.

This method of calculating diets (not diets and diets with components) should be indisputable. This follows the provisions set out above. It is not compatible with the above provisions, because there is no legal basis, to distinguish when a foreign journey “closes in the day”.

In terms of how national sections of foreign travel can be calculated, there is no regulation to introduce such a methodology of accounting.

_____________________________________________________________

1. Reference no. I PK 67/2005.

5 Letter from 2 February 2009, GPP-417-4560-10/09/PE/RP.

6 „Time of business travel shall be counted continuously from the moment of crossing the border on the way abroad to the time of crossing the border on the way back to the country, without taking into account the day or night time, the time of the change of date, etc., and the day shall be the time of each 24 hours regardless of the time in which that period begins.’ NSA judgment of 22 March 2000, reference no. I SA/Lu1747/98).

7 Lege non distinguente nec nostrum est distinguere. When the bill does not distinguish, it is not for us to distinguish.

8 As per content section 13 section 3 RPS, the diet charge (in the case of foreign journeys, cars) is calculated as follows:

1) a full allowance for each day of foreign travel;

2) for half a day of foreign travel:

• (a) to 8 hours – entitled 1/3 diet,
• (b) above 8 to 12 hours – entitled 50% diet,

(c) above 12 hours – you have a full diet.

9 No DPR-V-4280-14BW/TW/13.

10 Act of 26 July 1991 on personal income tax (i.e. Journal of Laws of 2019, item 1387 as amended).