Rising labour costs and burdens on employers, as well as the spreading form of remote work, have contributed to the growing popularity of B2B cooperation agreements. For the cooperating parties, this form is also more convenient due to greater flexibility in terms of time, scope and location.
In our experience, such agreements are also common in the IT industry, especially among programmers. However, the parties to such a contract should bear in mind that in the case of B2B contracts, the transfer of copyright to the other party is not automatic, as is the case with an employee creating copyrighted works as a part of the employment relationship. In the case of cooperation on a B2B basis, a separate written agreement or a special clause in the B2B contract is required.
It is also worth considering that, despite its many advantages, cooperation under a B2B contract may involve considerable legal and tax risks for both parties.
From the perspective of personal income tax (PIT), it should be remembered that according to the provision of Article 5b of the PIT Act, the activities are not considered non-agricultural economic activities if the following conditions are jointly met:
- liability to third parties for the result of these activities and their performance, excluding liability for committing tortious acts, is borne by the principal ordering these activities;
- activities are performed under the direction and at the place and time designated by the principal;
- the person performing the activities does not bear the economic risk associated with them.
It is also worth noting that the contractor providing the services should actually carry out a business activity, as defined in Article 5a point. 6 of the PIT Act – so it should be a profit-making activity, conducted on its own behalf regardless of its result, in an organized and continuous manner. Failure to meet even one of the prerequisites may be grounds for challenging such an agreement as a B2B contract by a tax authority or an inspector of the State Labor Inspectorate.
Self-employed very often conclude a B2B contract with only one entity – the principal. Such a model is associated, not without reason, with employment under an employment contract, although of course this is not a prejudicial element. The nature of the relationship linking the parties is also not determined by the title of the contract itself. The decisive element determining the nature of the contract binding the parties is the scope and manner of regulation of the obligations of the parties contained therein, especially of the party performing the commission.
Thus, there is no single, most important premise, the occurrence of which automatically determines that the parties who concluded a B2B contract are, in practice, linked by an employment relationship rather than a civil contract. In practice, the premises that are important for determining the nature of the relationship between the parties are many, and the parties to a B2B contract should pay attention to such aspects as, among others: supervision and direction of the principal or a supervisor designated by the principal, the place and time of performance of work, the contractor’s liability to third parties, the manner of determining remuneration, additional benefits for the contractor or paid leave or sick leave provided for in the B2B contract.
In the case of a B2B collaboration between parties who previously were bound by employment contract, and the self-employed provides services only to his former employer, it may be important that the services provided under B2B contract differ from those that the employee previously performed under the employment contract. The difference may be due to the scope of the services provided or the greater responsibility of the contractor compared to the tasks he performed for the employer while employed under an employment contract.
It should be emphasized that the possible questioning by the tax authority of the contract linking the principal and the contractor as a B2B contract, in practice, most often results in a questioning of the form of taxation of the income derived from it. However, it should be remembered that the questioning of a B2B contract by the State Labor Inspectorate, the Social Insurance Institution or the tax authority will have consequences for both parties to such a contract. The B2B contract will be reclassified as an employment contract, and with its reclassification on the part of the employer will arise i. a. the obligation to pay current and overdue (up to five years back) Social Security contributions for the employee, income tax, and the obligation to grant the employee leave due or pay its equivalent. An additional negative consequence on the part of the employee/self-employed may be, among other things, the tax authorities’ questioning of the right to deduct VAT from purchase invoices that were included in his VAT settlements, while performing activities based on a B2B contract.
In addition, a labour inspector’s finding that a B2B contract bears the hallmarks of an employment contract may result in the inspector imposing a fine of up to PLN 2,000 on the employer or filing a motion with the court to initiate misdemeanour proceedings and fining the employer. According to Article 281 § 1 point 7 of the Polish Labor Code, the amount of this fine can range from PLN 1,000 to PLN 30,000.
When drafting a B2B contract, therefore, special attention should be paid to the scope and wording of the contractor’s duties, and the content of the contract should be verified for its similarity to an employment contract. It is worth analysing the B2B contracts already concluded in a given organization, also taking into account the State Labor Inspectorate’s published SLI Action Program 2025-2027 providing for increased inspections of inspectors at employers. SLI inspectors are expected to conduct a record 55,000 inspections in 2025.
It is also impossible not to mention the changes announced by the Polish government, which are to concern i. a. the expanded powers of SLI inspectors in the fight against bogus self-employment. Currently, the determination of the existence of an employment relationship by SLI officer is only possible through an action in labour court. However, it is announced that SLI inspector might be given with broader powers in the future, which will enable him to order the change of a B2B contract to an employment contract on the basis of an administrative decision of the SLI, and thus the reclassification of B2B contracts into employment contracts may become easier.
