Artificial intelligence (AI) is increasingly being used in business, and the results of its use, such as graphics, texts, music, videos, etc., can be a source of income. The income tax treatment of such income remains a questionable issue.
Source of revenue
In the first instance, determining the tax treatment of income from the use of AI requires establishing the source of such income, in particular whether or not it is derived from business activities.
For the purposes of Personal Income Tax (PIT) regulations, economic activity is defined by a negative indication of premises, the cumulative occurrence of which does not create such activity. Thus, according to Article 5b of the PIT Law, activities are not considered non-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 torts, shall be borne by the ordering party;
- they are performed under the direction and at the place and time designated by the person ordering these activities;
- the person performing these activities does not bear the economic risk of the activity.
Whereby for-profit activity generally means activity whose purpose is to generate profit (regardless of the ultimate financial results). Organizing generally refers to the actual manner in which the activity is carried out, disregarding formal organizational requirements (such as registration of the activity being carried out, which is not required). It means activity that is the result of preparing an undertaking or introducing a certain order. Continuity means, as a rule, the relative constancy of activity (excluding incidental and sporadic activities). Thus, such parameters of the activities undertaken as their frequency, organization, time and place of performance, self-reliance and economic risk incurred remain key. Each case requires individual analysis.
Revenue from business operations
When generating income, including through the use of AI, in the course of business, the taxpayer may choose a form of taxation:
- 19% flat PIT;
- general rules (scale taxation);
- lump-sum forms of taxation – lump-sum income tax in the form of a lump sum on registered income or tax card.
It may be necessary to meet certain conditions. Thus, in terms of the lump sum on registered income, the type of activity must first be established.
In particular, the provisions of the lump sum referred to may apply to the following:
- Service activity in the field of trade – the sale, in an unprocessed state, of previously purchased products (goods) and goods, including those that have been packaged or considered by the seller into smaller packages or poured into bottles, cans or smaller containers (taxed at a 3% flat rate).
At the same time, in the case of the sale of AI-generated creations, we are not dealing with goods or products (wares) previously purchased. Hence, income from the business of selling such AI creations does not meet the conditions for taxation at a 3% flat rate.
- Manufacturing activities – activities that result in the creation of new products, including the sale of products of the taxpayer’s own production (taxed at a flat rate of 5.5%).
At the same time, it is at least debatable whether the generation of creations using AI constitutes a manufacturing activity, which should generally be understood as a production activity whose final result is the creation of a new product from purchased or manufactured materials. The application of the 5.5% flat rate for income from such activities is therefore also at least questionable.
- Provision of services related to consultancy in the field of computer hardware (classified under Polish Classification of Goods and Services – PKWiU 62.02.10.0), related to software (PKWiU ex 62.01.1), included in the grouping „Computer software originals” (PKWiU 62.01.2), related to software consulting (PKWiU ex 62.02), related to software installation (PKWiU ex 62.09.20.0), related to management of computer networks and systems (PKWiU 62.03.1) (taxed at 12% flat rate).
However, it is difficult to consider activities using AI to generate various creations as meeting the conditions for recognition as the above services taxed at a flat rate of 12%. This is confirmed, among other things, by individual tax ruling of March 17, 2023, No. 0112-KDSL1-1.4011.62.2023.2.AK.
- service activities, with exceptions (taxed at a flat rate of 8.5%).
Potentially, the activity of selling creations created using AI could qualify as a service activity, for example: graphic services – e.g., in the case of graphic design of interfaces, graphic design of websites, logo design, design of print materials (so, among others, individual tax ruling of January 17, 2022, No. 0113-KDIPT2-1.4011.901.2021.3.RK; services related to visual effects (so, among others, individual tax ruling of June 25, 2024, no. 0113-KDIPT2-1.4011.367.2024.2.DJD.
Non-business income
Revenue earned by individuals from the sale of AI-related creations outside of their business activities should be considered separately. Such revenues can be considered in the context of the following revenue sources:
- copyright revenue;
- income from personal activities (i.e., income from personally performed artistic, literary, scientific, coaching, educational and journalistic activities, including from participation in competitions in the fields of science, culture and art and journalism, as well as income from sports, sports scholarships awarded under separate regulations, and income of referees from conducting sports competitions or income from the performance of services, under a contract of mandate or contract for specific work);
- revenue from other sources.
Each of the above-mentioned sources of income is characterized by different taxation rules.
Key to resolving the principles of taxation of income from the sale of artificial intelligence creations is to determine the extent of human (personal) involvement and the legal nature of these elements (creations), in particular whether they can constitute copyrighted works. This issue is the subject of debate. Under Polish law, property copyright arises only in respect of those elements that can be considered the effects of creative human activity and have an original, individual character. Elements made with the use of AI raise doubts about the recognition that they are manifestations of human creative activity. The scale of human influence on elements generated using AI may be important.
The tax authorities’ position, which is (only just) taking shape, is restrictive. For example, a cloned voice that does not allow recognition or identification of the owner of the original voice has been challenged as a work. AI-created graphics, on the other hand, have not been recognized as works due to the limitation of human activity in this case to determining keywords or algorithm rules. As a result, income from the sale of such creations cannot be taxed other than as income from other sources (taxed according to the tax scale) – so individual tax ruling of April 29, 2025, No. 0115-KDIT1.4011.190.2025.1.MN.
Summary
The development of artificial intelligence opens up new opportunities for operations and revenue generation. At the same time, there is a lack of clear regulations indicating the correct way to account for them. As a result, a case-by-case analysis is necessary. At the same time, one should not forget about other emerging questions about the tax consequences of using AI in the activities undertaken, such as the possibility of applying 50% tax deductible costs.
