The possibility to use the support instruments provided for in the so-called The anti-crisis shields are subject to the obligation of entrepreneurs to provide a number of information and to make appropriate statements concerning, inter alia, the remuneration of the contracted customers.
In some cases, this may contribute to the initiation or strengthening of controls in entrepreneurs. In addition, inconsistency, the lack of clarification of the different concepts and provisions contained in the law may give rise to differences in interpretation, the consequences of which in the future may be examined by the authorities.
In this text, we indicate what kind of verification activities can be expected from the administrative authorities – of course, because of the lack of any practice in this area we refer to the potential possibilities that arise from the content of the legislation.
Possible checks can be divided into two categories:
- checks aimed directly at verifying whether the applicant has fulfilled the conditions for receiving the aid and whether he is benefiting from the aid in accordance with the objective;
- obtaining information about existing businesses, creating data sets that can be used in later control activities in different areas.
Distribution of loans to micro-entrepreneurs
first from examples of preferences resulting from the so-called crisis shield, which may in future result in the initiation of controls on the entrepreneur, including verification of the purpose and purpose of spending the funds transferred, is that micro-entrepreneurs obtain a loan to cover current business costs.
The conclusion mentioned above is due to a lack of clarity of the statutory concept of "current business costs" which may in the future result in a broad interpretation gap.
Journalists from the portal bizblog.pl In order to get a response, which in practice is the obligation to use the money obtained “for purpose” they have asked the Ministry of Family, Labour and Social Policy (hereinafter: MRPiPS). According to the Ministry’s reply, ‘the purpose of the loan is to cover current operating costs.
This means that this appropriation can only be used for such expenditure, e.g. rent, electricity charges, wages in the case of hiring employees, leasing, insurance, etc.’, explained MRPiPS.
It should be stressed that this reply was completed by indicating that the entrepreneur would not have to present documents confirming these expenses when the loan was decommissioned or settled. However, the MRPiPS points out that “by type of activity, any entrepreneur may expect checking activities to confirm whether he is acting legally. Controls may be carried out on the general principles laid down in the Business Law or in specific rules."
In view of the above statements, it should be noted that the actual activity of micro-entrepreneurs to obtain a loan may result in the competent authorities taking control. Therefore, it will require the entrepreneur to provide all information concerning the allocation and allocation of the funds obtained, as has been clearly highlighted by the MRPiPS.
It should therefore be borne in mind that, in the near future, the attention of the authorities may focus more on the entrepreneurs who have benefited from the designated support instrument provided for in the so-called anti-crisis shield.
Parking benefits – information on earnings received by contractors and contractors of work contracts
one from examples showing how wide the range of information is to be provided to authorities in connection with the application for the so-called solutions. The anti-crisis shield is, among other things, to complete the application for a parking benefit.
Contractor requesting a parking benefit (the value of which is 80% the amount of minimum remuneration for the work in force in 2020 established on the basis of the relevant provisions) for a person employed under civil law contracts, i.e. e.g. contract orders, is obliged in accordance with Article 15zs Anti-crisis shields to provide detailed information on the customer employed.
The Contractor is therefore required to demonstrate, inter alia, information such as the date of conclusion and the amount of the remuneration due under the civil law contract, and to make a declaration confirming that the person performing the civil law contract has obtained in the month preceding the month in which the application for the parking benefit was lodged, income not higher than 300% the average monthly remuneration from the previous quarter announced by the President of the Central Statistical Office on the basis of the provisions on pensions and pensions from the Social Insurance Fund applicable on the date of application.
The mandatory obligation to provide detailed information on the earnings of a person employed under a civil law contract also applies when the payer makes an effort to obtain a benefit to fund the remuneration in order to protect jobs. It should therefore be noted that the application by the payer for any form of support in relation to the contractors employed will be subject to a broad information obligation concerning, inter alia, the remuneration of the contractors.
Thus, the authorities will obtain more detailed information on civil law contracts concluded, as well as staff salaries. The information obtained may give an important clue to the offices when identifying entrepreneurs for potential controls.
There is also a question of what the indicated information obligation may have consequences in the future. In many cases, the information obtained may contribute to action by the inspector to bring an application to the labour court to establish the existence of an employment relationship if it is assumed that a legal relationship between the parties, contrary to the agreement, has the characteristics of an employment relationship.
Register of work contracts
Important from the point of view of this subject is also newly added by the so-called Anti-crisis Shield Article 36(17) Act dated 13 October about the social security system.
According to this provision, a contributor or natural person concluding a work contract will be required to inform the Social Insurance Institution (hereinafter: ZUS) of any such fact within the time limit.
7 days from the date of conclusion of the contract, if such a contract is concluded with a person with whom he is not in employment, or if, under such agreement, he does not work for the employer with whom he is in employment.
It should be stressed that this provision will enter into force on 1 January 2021, However, entrepreneurs should pay attention to him now. Until now, entrepreneurs had no obligation to report to the Social Security Office the persons with whom they concluded a work contract.
This obligation will therefore allow for the creation of a database of persons performing benefits under work contracts. This will then facilitate verification and examination of the relevance and grounds for applying such agreements in the future. On this basis, the Social Security Office will have more knowledge and opportunity to question its nature, and further to accept that the contract actually has the character of the contract and should therefore be charged with contributions.
It should also be pointed out that the mere justification for the adopted law does not indicate that the added provision would facilitate the verification of the given data and the fulfilment of conditions by persons using the form of so-called parking aid, for persons who are parties to a work contract. On the contrary, according to its wording, the addition of a provision is intended to enable the Social Security Office to verify the existence of a social security obligation for persons performing contracts called work contracts.
Given the above, entrepreneurs should bear in mind that not only the use of the solutions offered by the so-called anti-crisis shield, but also the provisions introduced by this law to other laws, may potentially result in an increase in the number of checks carried out.
The use of state aid by entrepreneurs under the instruments introduced by the Crisis Shield may lead to the attention of the authorities to these entrepreneurs.
However, such control should primarily concern the verification of the veracity of the information and statements made by the entrepreneur and the manner and purpose of using the proposed support instruments.