Reimbursement of Accommodation and Meal Costs for Employees Posted to EU, EEA and Switzerland

Employers posting employees abroad most commonly cover the costs of their accommodation and meals. Under tax regulations — in line with well‑established case law — such benefits do not constitute employment income and therefore are not subject to taxation. This position is confirmed, among others, by the judgment of the Constitutional Tribunal of 8 July 2014 (K 7/13) and numerous rulings of the Supreme Administrative Court (NSA).

However, the situation looks entirely different in the area of social security. The Social Insurance Institution (ZUS) and social security courts take the view that these same benefits form part of the contribution base insofar as they exceed the value of per diems. This approach raises legitimate doubts — if a benefit is not considered taxable income, why should it be subject to social security contributions?

The following sections outline the arguments of both sides, reference specific judgments and interpretations, and propose possible actions for employers seeking to organise their internal practice and mitigate risk.

Tax Perspective – Case Law Is Clear

According to established administrative court jurisprudence and the judgment of the Constitutional Tribunal of 8 July 2014 (K 7/13), benefits such as accommodation and meals provided by the employer in connection with posting an employee abroad do not constitute income from employment. The key reasoning is that these benefits are provided in the employer’s interest, not the employee’s.

This position is confirmed by, among others, NSA judgments of 2 October 2014 (II FSK 2387/12) and 23 July 2015 (II FSK 1689/13), as well as the individual tax ruling issued by the Director of the National Tax Information on 13 March 2024 (0112‑KDIL2‑1.4011.29.2024.2.MKA).

Although tax authorities continue to rely on the literal wording of Article 21(1)(19) of the Personal Income Tax Act, which provides for a tax exemption up to PLN 500 per month, this provision has been in force since 1 January 2011 — predating the Constitutional Tribunal’s ruling. In the event of a conflict, the later ruling of the Tribunal prevails.

Social Security Perspective – Divergent Position of ZUS and the Courts

Contrary to the tax approach, the Social Insurance Institution and social security courts consider these benefits to be subject to contributions. The key authority here is the resolution of the Supreme Court of 10 December 2015 (III UZP 14/15), which held that although the concept of “income” is shared between tax and social security legislation, the social security regulations contain autonomous rules on exclusions from the contribution base.

As a result, case law confirms that accommodation and meal costs exceeding the value of per diems are subject to social security contributions (Supreme Court judgment of 8 March 2016, II UK 96/15; Supreme Court judgment of 4 October 2022, I PSKP 88/21).

Under § 2(1)(16) of the Regulation of 18 December 1998, only per diems are excluded from the contribution base — not reimbursement of accommodation or meal costs.

What Can Employers Do?

To mitigate risk, employers may consider:

• submitting a request for an individual tax ruling to the Director of the National Tax Information (in the tax area),
• submitting a request for an interpretation to ZUS (in the social security area).

Although there is a risk of receiving an unfavourable interpretation — particularly from ZUS — the procedure helps formalise internal practice and prepare for potential litigation.

Summary – Key Points to Remember

Reimbursement of accommodation and meal costs for posted employees does not constitute income under tax regulations, but — according to current social security case law — is subject to contributions. This discrepancy requires employers to exercise particular caution and ensure deliberate, well‑documented settlement practices.