Disposal of used equipment by an employer to an employee – what is worth knowing?

Many companies aim to strengthen their relationship with with their employees by offering various employee benefits or facilities. One of the increasingly popular option is the opportunity to purchase used equipment at attractive prices, such as computers, laptops or smartphones.

While such offers can be beneficial for both employees and employers, it is essential to consider tax obligations and rules concerning social security contributions.

Income from the purchase of equipment

The sale of used items by an employer may generate taxable income under the PIT Act. If an employee purchases equipment at a price lower than its market value, the difference will be treated as income, which arises when the sale is made. Therefore, it is crucial to ensure that the sale price is properly documented.

Social security contributions

In this case, the basis for social security contributions is income from the employment relationship, in accordance with the provisions of the PIT Act. However, it should be noted that certain income is excluded from this basis. Pursuant to § 2(1)(26) of the Regulation of the Minister of Labour and Social Policy of 18 December 1998 on detailed rules for determining the basis for the social security and pension contributions, the following benefits are excluded:

• result from collective labour agreements or remuneration regulations,
• entitle to purchase goods or services at prices lower than retail prices.

This means that if an employee purchases equipment under such regulations and at below-market prices, they may be exempt from social security contributions.

The authorities’ current approach

However, it is worth noticing recent decisions of the Social Insurance Institution (ZUS) that undermine the applicability of the exemption under § 2(1)(26) of the Regulation to equipment or fixed assets resold by the employer.

ZUS points to important differences between the provision of services and goods by the employer at lower prices and the resale of components of the employer’s equipment. A letter from ZUS dated 28 February 2024, ref. DI/200000/43/185/2024, notes that the value of the benefit obtained by an employee through the purchase of a used laptop is not excluded from the basis for the assessment of social security contributions, even though the terms and conditions of the repurchase were written into the employer’s internal regulations. In practice, this means that the difference between the market value and the sale price will constitute the contribution assessment basis.

It should also be noted that the courts have taken the position that preferential sales rather apply to goods and services produced or provided by the employer. Such a position was presented, for example, by the Supreme Court in its judgment of 27 November 2018, Case No. I UK 319/17. In that judgment, the Supreme Court stated that the ratio legis of the privilege set out in § 2(1)(26) of the Regulation is to privilege the payer’s employees by enabling them to purchase goods or services sold on the market by the employer at a lower price.

However, the approach presented both in the interpretations of ZUS and in the case law goes beyond the literal wording of § 2(26) of the Ordinance and raises serious objections.

Summary

In light of  recent negative interpretations of the authorities, the ability to apply for an  exemption from the basis for social insurance contributions depends on the type of benefit offered by the employer.

In addition to the previous conditions, which included the need for the benefit to arise from collective agreements or remuneration regulations and to be purchased at a price lower than the retail price, another important element must now be borne in mind. The goods or services offered should, according to the Social Security Administration, be produced or sold by the employer itself.

It is therefore essential to exercise particular caution and be well-prepared to ensure favorable terms for the purchase of used equipment by employees without the risk of additional contribution liabilities.