Managerial contract and VAT - new position of tax authorities

The managerial contract is governed by the order regulations in article 750 of the Civil Code - they are service contracts. The parties to the contract are the entrepreneur and:

• a natural person or

• a natural person running a business or

• legal person.

Important! A management contract is defined as a due diligence agreement with elements of a result agreement. There may be a clarification of what the essence of diligence is here.

 

A manager, while running a company, has to show diligence. In other words, he must use his abilities to run the business correctly.

VAT taxation

Article 15 (1) 1 of the VAT Act indicates that services that are provided by:

• a taxpayer who is a legal person,

• organizational units without legal personality,

• natural persons self-employed.

Managerial contract and independent performance of services

Whether or not services performed by a manager are provided as part of a self-run business is crucial in determining taxation.

In a situation where the manager's services are performed using the infrastructure and organization of the company that concluded the contract with him, and the tasks performed are not related to his personal economic risk, then it is certainly not possible to speak of independent performance of services. No responsibility means no independence. Thus, there is no question of taxation with tax on goods and services in a situation where both parties to the contract have ties that bear the features of an employment relationship (the manager is not burdened with the economic risk related to his activities).

Until now, however, tax authorities have recognized that if the manager pays the insurance premium, and the insurance purchased by him covers the civil liability of the company's authorities, then he performs an independent activity and is a VAT taxpayer. At the same time, the policy should apply to civil liability for damage caused - to the company and third parties - due to unreliability or improper actions during the performance of duties.

An example of such a position was the interpretation of the Director of the Tax Chamber in Katowice of December 13, 2013 (reference number IBPP2 / 443-812 / 13 / KO), which concerned the situation of a manager concluding a management contract with an entrepreneur. This agreement contained a provision on the provision of management services as a member of the management board. The main condition for concluding the contract was the purchase by the manager (at his own expense) of the aforementioned third party liability insurance contract - i.e. the manager was liable to third parties.

Management contract - new position of the tax authorities

New light on the matter was shed by the interpretation in a similar case of the Director of the Tax Chamber in Łódź of May 4, 2015 (IPTPP1 / 4512-133 / 15-4 / AK).

Important! According to the new position, the Director of the Tax Chamber in Łódź, activities performed on the basis of a managerial contract are not subject to tax on goods and services.

 

In the opinion of the Director of the Tax Chamber in Łódź, the applicant, as a member of the management board - manager, operates within the company's organizational structure, does not bear the costs of its activities, the remuneration is not dependent on economic risk and acts only on behalf of and for the benefit of the managed company. Therefore, the applicant's activity does not fall within the definition of economic activity specified in the VAT Act, as the condition of independence is not met. In connection with the above, activities performed on the basis of a management contract are not subject to tax on goods and services.