ZUS questions the full-time positions of partners in limited liability companies. SME spokesman: entrepreneurs can defend themselves

ZUS is increasingly questioning the employment of shareholders in limited liability companies as full-time employees, concluding that despite the actual performance of work, there was a lack of employee subordination. The SME Ombudsman warns that these decisions deprive entrepreneurs of contribution periods and reminds that companies can submit an objection, appeal or request for intervention.

The Ombudsman for Small and Medium-sized Entrepreneurs is contacted by entrepreneurs running a business in the form of a limited liability company, against whom ZUS has repeatedly carried out checking the correctness of reporting to social security for employment under an employment contract of one of the company's partners.

Repeated inspections and changes in ZUS assessment

“Entrepreneurs note that these inspections are only the second or third time when they notice irregularities in the notifications to social insurance under the employment contract of the company's partners. Based on the identified irregularities, ZUS issues decisions confirming that a partner of the company is not subject to social insurance under the employment contract concluded with the company. In its decisions, ZUS alleges that although the work was actually performed, it was not carried out in the so-called “subordination” – we read on the website of the SME spokesman.

Agnieszka Majewska, SME spokesperson, reminds that entrepreneurs have several possible paths of action in the event of a repeated inspection or decision excluding a partner from social security:

• Filing an objection to re-inspection – if the new inspection covers the same scope and period as the previous one, the company may raise an objection within 3 business days from the initiation of the inspection.
• Appeal against the ZUS decision – both the company and the employed partner may appeal to the court within one month of delivery of the decision.
• Application for a decision on insurance coverage under a civil law contract – e.g. a management contract, mandate contract or service contract.
• Application for confirmation of debt or overpayment of contributions – opens the way to possible constitutional verification of the provisions.
• Request for intervention of the SME Ombudsman – The Ombudsman may participate in administrative or court proceedings if the entrepreneur gives his written consent.

The lack of subordination between the company and its partner does not exclude the possibility of being covered by social insurance under a civil law contract. Simultaneously Majewska emphasizes that:

• subject of the order identical to the subject of any sole proprietorship run by the employee, it does not constitute a separate entitlement to social insurance.
• management contractwhen an employee runs a business, may constitute a separate title to insurance, provided that it should cover activities of a management nature.
• jif the insured employee-partner also runs a business, performs a manager's contract or a mandate contractthe amount of the basis for assessing contributions will be important when determining under which social security contributions should be paid.

The periods of liability for the performance of a management contract or a contract for the provision of services will affect the right to pension benefits, even if the insured partner is legally excluded from employment insurance on the basis of an employment contract performed for the Company. z o. o. – reminds the spokesman.

Application for confirmation of debt or overpayment of contributions paid as a result of a partner's employment in a limited liability company may open the way to constitutional verification of the current social security regulations. This legal instrument allows entrepreneurs to challenge unclear regulations and practices of the pension authority. It is worth submitting an application to the Ombudsman for Small and Medium-sized Entrepreneurs immediately, because the Ombudsman may participate in court proceedings in social security cases – under the terms of a prosecutor – only if he has previously participated in administrative proceedings and has the entrepreneur's written consent to such participation.

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