The entrepreneur does not have to pay social security and health insurance premiums from tips received by his employees. Even in a situation where the legislator imposed on him the obligation to register such payments.
In May 2015, the ZUS received an application for an individual interpretation. The reason for doubts of the entrepreneur was the issue of paying premiums from tips received by the croupiers (or inspectors acting as dealers), cashiers, receptionists or employees servicing gaming machines.
The company operated casinos on the basis of a concession granted under the Gambling Act. There was a custom in them that the tips in each case went to the person running the game or serving customers. Which is not typical, because most casinos collect all the tips, and only then divide them among all employees. Although the tips were passed directly to the casino staff, this form of thanks for the service was recorded. Such an obligation results from the ordinance of the Minister of Finance of 4th of January 2010 on the documentation of entities operating in the field of gambling. And precisely because of this registration of tips, the company asked the Social Insurance Institution (ZUS) to issue an individual interpretation, so that there was no doubt that these contributions should not be paid.
In 2015, the ZUS refused to prepare such a document and the case went to court. Only the sentence issued in the second instance ordered the issuance of an individual interpretation. ZUS executed the verdict and the document shows that the employer is not obliged to pay social security and health insurance premiums from tips received by the casino employees. This is because they are not revenues earned as part of an employment relationship from an employer, but transferred by clients. Thus, ZUS agreed with the company that such funds do not constitute income within the meaning of the provisions of the tax on natural persons, achieved by employees at the employer due to employment under a contract of employment. And thus, they cannot form the basis for calculating social security contributions. The basis for such a statement is art. 18 § 1 and 2 in connection with art. 20 § 1 of the Act on the social insurance system.
There, it was unequivocally indicated that the basis for contributions is only taxable income.
The exclusion from the tip value basis also applies to health insurance premiums. According to art. 81 § 1 of the Act of 27th of August 2004 on healthcare benefits financed from public funds to determine the basis for assessing contributions to health insurance for employees, the provisions determining the basis for assessing contributions to pension and disability insurance apply.
Thus, since tipping is not included in the basis for the assessment of retirement and health insurance contributions, it cannot be used to determine the amount of contributions to the Labor Fund and the Guaranteed Employee Benefits Fund.