The IT industry still cannot count on a uniform fiscal position on flat rates from revenues recorded for IT and programmers. In individual tax rulings, the Director of KIS once accepts a flat rate tax of 8.5%, and, on another occasion, considers that the tax rate at the level of 12%.
All this makes it possible to safely choose the right rate for a particular case only after confirmation of the taxpayer's position by an individual tax interpretation.
While in some cases interpretations make it possible to distinguish one a visible line of interpretation, which can be an indication for taxpayers, does not seem to be clear and transparent rules for determining who can apply the lump sum 8.5%, and who should be taxed at the rate 12%.
The rule is, 12% the flat rate applies to services:
- related to computer hardware consultancy (PKWiU 62.02.10.0),
- included in the ‘Computer software originals’ grouping (PKWiU 62.01.2),
- software related (PKWiU ex 62.01.1),
- related to software advisory (PKWiU ex 62.02),
- software installation (PKWiU ex 62.09.20.0),
- network management and IT systems (PKWiU 62.03.1).
It is therefore logical to assume that other services will be taxed at a rate 8.5%.
The problem is that, in practice, the tax authorities point out that the possibility of applying a lump sum and the amount of the flat rate on the recorded revenues generated in connection with the economic activity depends solely on the actual nature of the services provided in that activity. It is therefore necessary to assign every time the type of activities carried out to a specific grouping of PKWiU. It is for the taxpayer to classify the services actually provided to a specific symbol of PKWiU.
Analyzing the interpretations, it can be noted that to the end 2022 The director of KIS accepted the view that the criterion that differentiates whether a service is related to programming or not is whether an IT specialist writes source codes or interferes with their content. In turn in the year 2023 We can already observe the change of position and the tax authorities point out that the higher rate of the lump sum should be taxed not only on revenues from services which result in the creation of software, but on all services which, at least indirectly, have to do with programming. An example can be given an interpretation of the Director of KIS from 5 July 2023 (No 0114-KDIP3-2.4011.347.2023.2.JK2), where programming services are considered to include:
- design and implementation of cloud infrastructure in accordance with customer requirements,
- creating technical documentation on computer systems,
- configuration of tools monitoring data systems,
- automation of implementation processes of information systems,
- development of existing customer computer infrastructure.
It should be noted that we are not dealing with a change in tax rules, but with an interpretative change presented by tax authorities, which always raises doubts and introduces uncertainty on the part of taxpayers.
In addition to the identified doubts about the appropriate qualification of the activities carried out, taxpayers operating in the IT sector are increasingly also faced with checks by the tax authorities (and also ZUS), which verify whether the person in question conducts an economic activity at all, which is a condition for the use of the lump sum.
The authorities shall verify that the person concerned should apply the tax rules applicable to the employment contract or civil law contracts instead of flat-rate taxation.
It is worth remembering that, in the event of a possible check, the taxpayer will have to demonstrate that he meets all the conditions for the application of the lump sum and that he has chosen the appropriate rate of taxation.
In order to avoid the risk of any reclassification of tax rules, it is recommended that individuals operating in the IT sector consider an individual tax interpretation that will safeguard their interests.
We provide full support at every stage of your business activity, including, among other things, obtaining confirmation of the correctness of your accounts and securing interests by obtaining an individual interpretation of tax law.
Feel free to contact us.