Landmark resolution of the Supreme Court on social security contributions in the case of shareholders of a limited liability company

After many years of erroneous practice in the field of calculating social security contributions to shareholders of limited liability companies in which one shareholder who is a natural person holds the majority of shares, the Supreme Court adopted a resolution in which it stated that a shareholder holding 99% of shares in a limited liability company is not subject to social insurance.

As a reminder: the provision of Art. Article 6(1)(a) 5) In the accordance with Art. Article 8(6)(4) of the Act on the Insurance System provides that a partner in a single-member limited liability company is subject to social insurance. The provision seemed to be clear and obvious, but ZUS, and the courts (including the Supreme Court), assumed that a shareholder holding 99%, 95% or even 90% of shares is “almost” the only shareholder. As a consequence, they charged him with social security contributions, contrary to the unambiguously worded regulations. The recent resolution of the Supreme Court in case III UZP 8/23 restores the correct interpretation of the provisions in question.

What does this mean for shareholders?

  • no need to pay undue contributions and opening the way to recovery of unduly paid contributions,
  • pending cases should be considered taking into account the resolution of the Supreme Court,
  • in cases that have been finally concluded, it will be necessary (if possible) to file extraordinary measures, such as a cassation appeal or a motion for declaring the illegality of a final decision, and then to file a claim for reimbursement of unduly paid contributions,
  • In the case of final decisions against which extraordinary remedies are not available, a claim may be brought without the decision being declared unlawful, unless the party has not availed itself of its legal remedies.