RSU tax is an issue that increasingly concerns IT specialists, employees of foreign capital groups and B2B contractors. In theory, an incentive plan should allow taxation to be deferred until the shares are sold and the income to be taxed at 19% PIT. In practice, not every plan meets the statutory conditions for preferential treatment, and incorrect classification may mean that tax has to be paid earlier — even under the progressive tax scale.
More and more companies offer employees and contractors participation in share-based incentive plans. Most often these are RSUs, i.e. restricted stock units, or ESOPs, i.e. option or equity plans for employees and contractors. This issue was discussed in the Prawo.pl article entitled “Incentive plans do not always provide tax benefits”, in which the matter was commented on by Piotr Sekulski, PhD, tax advisor and founder of Outsourced.pl. The article addresses many practical issues related to the taxation of incentive plans and the topic of RSU tax. The full text of the article is available here.
RSU tax – is it 19% PIT?
Wielu uczestników programów RSU zakłada, że podatek pojawi się dopiero przy sprzedaży akcji. W takim wariancie dochód ze Many RSU plan participants assume that tax will arise only when the shares are sold. In such a scenario, income from the sale of shares may be reported in PIT-38 as capital gains income, generally taxed at the 19% PIT rate.
This treatment may be beneficial, but only if the conditions provided for in the PIT Act are met. The key provisions are, in particular, Article 24(11) and Article 24(11b) of the PIT Act, which provide for a special mechanism allowing taxation to be deferred for certain incentive plans.
In practice, it is necessary to verify, among other things, who established the plan, which company grants the rights, whether the plan was adopted in the required form, and whether the participant actually subscribes for or acquires shares in a company that meets the statutory conditions.
Piotr Sekulski, PhD, tax advisor
“The problem is that some plans do not meet the conditions for applying the preferential treatment.”
If the conditions are met, income may arise only at the moment of the paid disposal of the shares. However, if the plan does not fall within the statutory rules, the tax authorities may take the position that income arose earlier — for example, when the shares were received or when the right was exercised.
We have already written more broadly about similar risks in this article:
When can RSU mean 32% PIT?
The greatest risk arises when a plan participant assumes that they will pay only 19% PIT on the sale of shares, but the plan does not meet the conditions for preferential treatment. In such a situation, a dispute may arise as to whether the income should have been recognised earlier.
This applies in particular to foreign plans created by companies from international capital groups. The documents of such plans are often prepared under the law of another country, and their structure does not always correspond to Polish tax requirements.
A risk may arise, for example, where the plan was established by a management board decision rather than by a general meeting resolution, or where the entity granting the benefit is not an equivalent of a Polish joint-stock company. It is also relevant whether the plan participant is an employee, a B2B contractor, a management board member or a contractor of a foreign company.
Piotr Sekulski, PhD, tax advisor
“The result may be the need to pay additional tax in the future.”
In practice, the consequences may be significant. If the tax authority concludes that income arose earlier, the taxpayer may be required to report it under the progressive tax scale, including at the 32% PIT rate. Then, when the shares are sold, another tax settlement for capital gains may arise.
It is also worth remembering that the situation of an employee may differ from that of a B2B contractor conducting business activity. The Prawo.pl article also referred to a tax ruling concerning a self-employed IT specialist taxed under the lump-sum tax regime, where the possibility of taxing the free-of-charge acquisition of shares at the 3% lump-sum tax rate and the subsequent sale of shares at 19% PIT was analysed.
We have also discussed the broader context of equity plans here:
What should be checked before settling RSU tax?
Before settling RSU, it is not enough to check how many shares were granted and at what price they were sold. First, it is necessary to determine whether the plan allows taxation to be deferred at all.
In practice, it is worth analysing in particular the plan documents, the plan rules, the grant agreement, vesting rules, resolutions or decisions establishing the plan, the relationship between the company employing or engaging the individual and the company granting the shares, as well as the taxpayer’s status at the time of grant, vesting, share acquisition and sale.
It is also important whether the taxpayer receives shares, options, RSUs, phantom shares, shares in a company or other property rights. Different structures may lead to different tax consequences. In the case of IT specialists and B2B contractors, it is additionally necessary to verify whether the plan is connected with business activity or with another legal relationship, and how the selected form of taxation affects the timing and method of tax settlement.
How can we help?
We help analyse the tax consequences of RSUs, ESOPs, options, phantom shares and other incentive plans. We verify plan documentation, the moment when income arises, the possibility of applying tax deferral, the method of PIT settlement and the risks related to foreign plans.
We support both employees and B2B contractors, in particular individuals from the IT sector, startups and international capital groups.
If you participate in an RSU or ESOP plan, it is worth checking the tax consequences before selling the shares or before filing the annual tax return. The incorrect assumption that it is always sufficient to settle 19% PIT upon sale may lead to tax arrears, interest and a dispute with the tax authority.
Remember — before settling RSU, it is worth organising the plan documents and checking whether preferential tax treatment can actually be applied in your specific case.
