Working remotely from Poland: when does a foreign employer risk a permanent establishment?

Allowing an employee to work from a Polish home can affect a foreign employer even without an office or authority to sign contracts. Yet an employee and a laptop do not automatically create a permanent establishment. Examine premises at the company’s disposal, actual functions, the reason for Poland and the governing tax treaty. Rulings and judgments reach different outcomes for legal-practice administration, logistics, programming and training support. The cases below explain why, and what management should establish before approving the arrangement. Company CIT, employment income, social security and VAT require separate analysis.

Law and source review: 10 November 2026.

Tax Legal Partner team

Can an employee’s home office create a Polish permanent establishment?

It can, but the presence of an employee and a laptop is not enough by itself. A fixed-place permanent establishment requires examination of premises at the enterprise’s disposal, permanence and business conducted through that place. Preparatory or auxiliary exceptions can then matter. These conditions must be considered together. Work important to the business does not independently establish that the employer has a place at its disposal.

Start with Article 4a(11) of the Polish CIT Act and the relevant tax treaty. The German examples concern Article 5 of the Germany–Poland treaty. A business resident elsewhere needs its own applicable treaty and wording, rather than importing the German outcome. The OECD Commentary assists interpretation but does not replace the treaty text. The Danish case discussed below has a separate treaty basis.

Ownership or a lease is not decisive because actual disposal of space can matter. Equally, employing a remote worker and providing equipment does not automatically put the worker’s home at the company’s disposal. Establish whether the employer requires a particular space, whether the employee can change location and how the arrangement works in practice. A self-selected home or coworking location differs from a room permanently organised to meet the employer’s operational needs. These are facts to assess, rather than predetermined outcomes.

A dependent-agent PE requires separate consideration. No authority to sign can be relevant to that test without resolving fixed-place exposure. Contractual wording should also match actual responsibilities: a prohibition is unhelpful if the employee performs different functions in practice. Tax registration, or the absence of a registered branch, does not substitute for the treaty analysis.

Does the 183-day rule determine home-office permanent establishment risk?

There is no universal 183-day safe period for a CIT permanent establishment. Taxation of employment income and the employer’s PE answer different questions. Article 15 of the Germany–Poland treaty contains several conditions rather than a simple presence count. An employer should not assume that a shorter stay permits the corporate analysis to be omitted.

Record employee residence, actual working locations, working days and who bears remuneration. Even a shorter stay requires examination of the employer and the cost borne by a PE under the relevant treaty conditions. Paying salary through a foreign bank account or through headquarters does not independently establish the actual workplace or settle all tax consequences.

Permanent relocation, recurring work in two states and a genuine temporary posting are different models. Social-security analysis, including Regulation 883/2004 where applicable within the EU framework, remains separate. An A1 certificate does not confirm absence of a CIT PE. VAT also uses its own fixed-establishment criteria concerning human and technical resources.

Management needs a consistent account of company and employee obligations with their respective legal bases. A favourable answer under one test does not automatically resolve the others. Day-count records remain useful, but they must be used for the question they actually address.

Legal-practice administration: why KIS reached adverse conclusions

Ruling 0114-KDIP2-1.4010.86.2025.2.MW of 23 April 2025 concerned a German provider of legal and patent-attorney services. A worker in Poland would prepare applications and supporting documents, handle correspondence, update clients, monitor deadlines and prepare billing records. Client contracts were concluded abroad and the employee had no authority to negotiate or sign them.

KIS nevertheless treated the work as part of the practice’s substantive business and found a PE. Calling the position administrative did not change its contribution to client engagements. Employers should therefore describe the work product and its role in the promised service, rather than relying on a job title or signature prohibition. In patent matters, preparing filings and monitoring deadlines can directly affect the client’s case.

Similarly, ruling 0111-KDIB1-2.4010.452.2025.2.AK of 19 November 2025 was adverse. The Polish worker performed tasks constituting a material part of the company’s service. No lease or signing authority did not persuade KIS. These are positions on particular facts, not proof that every private desk is an establishment. They must be considered alongside judgments examining disposal of premises separately.

An adequate role description explains which documents and decisions are produced, who approves them and who is responsible for the customer-facing result. Similar labels such as support or administration can cover different activities. Comparing the actual division of work is more informative than comparing titles alone.

Logistics and software: what differed in the favourable 2026 rulings?

In ruling 0114-KDIP2-1.4010.35.2026.2.PP of 26 March 2026, a German trading company’s employee wanted to move to Poland for personal reasons. Duties supported delivery planning, transport organisation and logistics documentation. Key management and commercial functions remained in Germany. The company did not need Polish presence to develop a local market and had no disposal of the home. KIS accepted no PE on the complete stated facts.

The conclusion cannot be reduced to inserting personal relocation into a consent letter. Developing the Polish market, meeting local customers or using space organised for the enterprise would change relevant facts. Supplying a standard work computer does not by itself answer the premises question either. The stated arrangement must remain consistent with what happens after approval.

Favourable ruling 0111-KDIB2-1.4010.161.2026.2.AJ of 3 June 2026 concerned a Flutter developer employed by a German company. The employer would have preferred work at its German premises but accepted the employee’s request to work from a Polish home. Absence of commercial need for that location and of disposal rights mattered. The outcome did not simply rest on labelling programming auxiliary.

KIS also discussed newer OECD explanations on cross-border home working. Commentary can help interpret a treaty; it does not establish a universal statutory day or percentage exemption. A lasting arrangement requires analysis under the governing treaty and its actual commercial rationale. It should be revisited when the organisation or responsibilities change.

The Danish insurer: a favourable ruling following court review

Ruling 0111-KDIB1-2.4010.197.2021.11.MK of 8 September 2025 concerned administrative work for a Danish insurer. Employees chose their working locations and the company had no space at its disposal. The favourable outcome followed judicial review and the legal position relevant to the original ruling. It was not an independent new statement about all foreign employers.

In the final judgment II FSK 609/22 of 19 February 2025, the NSA dismissed both cassation appeals but corrected the lower court’s reasoning about whether premises existed. Equipment and remote connectivity did not automatically create space available to the employer. The WSA case, NSA judgment and later ruling form one case history, not three independent confirmations.

For another company, this provides an argument requiring comparison of facts and treaty terms. It does not grant the personal protection associated with the applicant’s own ruling. Nor should the absence of Polish customers be isolated as a general guarantee against a PE; the actual functions and treaty conditions still require examination.

Training administration: a second final NSA judgment

II FSK 163/23 of 28 October 2025 concerned a German personnel-development business. Consultants abroad provided training and competency assessments. Workers in Poland arranged programme access, videoconference rooms, reminders and distribution of materials. Those activities had to be compared with the company’s actual service, rather than treating every stage as equally substantive.

The NSA dismissed the authority’s appeal. It emphasised the absence of premises at the company’s disposal and additionally the auxiliary nature of the described work. Discussing how important a task is cannot replace a missing first condition. The case helps distinguish organising a session from delivering the training or consultancy itself. A usable role description identifies who performs each part of the client engagement.

Audio-system development: a material but non-final WSA judgment

In I SA/Gl 962/25 of 8 May 2026, WSA Gliwice examined a worker for a manufacturer of professional audio systems. The work involved software, product development, testing and integration. It could be important to the product offering. However, the company had no disposal of the employee’s home and could not inspect it; the employee selected locations, including possible coworking space.

The court annulled ruling 0114-KDIP2-1.4010.178.2025.2.MW of 6 June 2025 and rejected the existence of premises in that model. This was substantive reasoning, rather than merely removal of a procedural defect. The judgment remains non-final on the verified record. It is neither a definitive guarantee nor an annulment of the separate adverse April and November rulings discussed above.

The practical point concerns cumulative conditions. Significant development work does not automatically create space at the enterprise’s disposal. Conversely, referring to a private home does not finish the examination. The analysis should explain the differences between administrative positions and judgments, including the latter’s finality.

If a PE exists: attributable profit rather than all turnover

A PE is not a separate company, and finding one does not automatically make all foreign turnover taxable in Poland. Article 7 of the relevant treaty requires attributable profit to be determined. Actual functions, assets, risks and costs are needed, rather than just employee headcount. The analysis should be prepared to explain the economic contribution of the Polish operations.

Consider an illustrative business area with EUR 300,000 revenue and EUR 90,000 pre-tax profit. A privately chosen employee relocation differs from an organised Polish sales operation. If the latter creates a PE, its attributable profit must first be assessed. Applying 19% to the entire EUR 300,000 turnover would already be methodologically wrong. The example sets neither a correct allocation nor a universal tax rate.

The EUR 90,000 total profit is not automatically all Polish PE profit either. Functions performed elsewhere and their associated costs, assets and risks must be considered. Payroll proportions may provide information without replacing a reasoned allocation. Management should know whether the data could be assembled if a subsequent review finds a PE.

Moving group functions or business opportunities can also require a separate MDR assessment. The relevant amended wording of Article 86a of the Polish Tax Ordinance applies from 1 October 2026 following Journal of Laws item 846. Cross-border home working alone does not automatically trigger reporting; the particular arrangement and statutory hallmarks must be examined.

What should be prepared before approving work from Poland?

The file should cover the reason for Poland, actual duties, use of space, equipment, authority and decision-making. Explain customer and supplier contacts and the work’s contribution to services or products. A negotiation prohibition carries little weight if the employee effectively sets terms that headquarters only formally confirms.

Review triggers include changed duties, additional staff, rented premises, local market development and changed powers. Consent to a personal relocation does not automatically describe the business a year later. Identify the relevant factual boundaries and who must report a change, so that an earlier opinion remains connected to reality.

Our international-tax advice compares the employment plan and actual operations with the applicable treaty. The business receives an assessment of PE conditions, obligations requiring separate analysis and circumstances requiring a renewed review. HR, finance and management can approve the same model and recognise when a private location becomes a local business operation. The service team’s contact details appear below.