50% Tax-Deductible Costs in IT Do Not Begin in the Contract. They Begin in Systems, Data, and the Real Creative Process

In the IT industry, 50% tax-deductible costs (KUP) have long ceased to be a niche solution. They have become a permanent element of compensation models for specialists, and in many organizations even the default way of thinking about creative work. The problem, however, is that a structure that looks good on paper increasingly fails to withstand confrontation with legal, tax, and operational reality. Today, the safety of the model is no longer determined by contractual provisions alone, but by whether an organization can demonstrate how creative work is actually produced.

The starting point remains Article 22(9)(3) of the Personal Income Tax Act. This provision does not refer to the IT industry, the role of a programmer, or the mere fact of creating software. It applies to income derived from the use or disposal of copyrights by creators. The Act also provides that the preference covers creative activity in the field of computer programs. This means that 50% KUP does not apply simply because someone “works in IT,” but only when a “work” (utwór) within the meaning of copyright law is created, when copyright is transferred or licensed, and when the remuneration actually includes an author’s fee for that result.

This distinction is of fundamental practical importance. 50% KUP is not a function of position, team, or general scope of duties.

It is a function of a specific work result. This is precisely why not every activity performed by an IT specialist qualifies for this preference. A work may include source code, system architecture, an algorithm, a model, or technical documentation, but maintenance tasks, routine fixes, and repetitive activities generally do not meet the criterion of creativity. The boundary between creative and non-creative work is therefore not an addition to the model, but its core.

In practice, however, the greatest risk does not arise from describing creative work itself, but from remuneration. Author’s fees must be separated and linked to a specific work result. It is not enough to assume in general that “some tasks are creative,” nor is it sufficient to rely on contractual provisions declaring the creative nature of remuneration. The compensation structure must genuinely reflect the transfer of copyright. For this reason, it is not permissible to apply 50% costs to the entire remuneration solely because a person performs highly specialized technological work.

This is best illustrated by recent case law. In the publicly discussed judgment of the Supreme Administrative Court (NSA) of October 23, 2025 (case no. II FSK 766/25), the court indicated that it is not possible to effectively “add” an author’s fee and apply 50% KUP retroactively if, during the employment relationship, remuneration for the transfer of copyright had not been previously separated. This sends a very strong signal to the market: the 50% KUP model must be designed ex ante, not reconstructed ex post when a dispute or audit arises.

In the IT environment, the real picture of the creative process exists elsewhere: in project tasks, code repositories, change history, developer workflows, tickets, commits, and decision trails.

In other words, the tax model ceases to be a function of documents and becomes a function of systems. It is there that one can see what was actually created, who the author was, when the result was produced, and whether it truly qualifies as creative work rather than merely the execution of repetitive tasks according to a predefined specification.

This shift is further reinforced by the development of AI tools. The first provisions of the AI Act came into force on February 2, 2025, covering, among other things, the definition of an AI system, obligations related to AI competencies, and prohibited practices. From the perspective of 50% KUP, the significance of these changes is greater than it might seem. Demonstrating only the final result is increasingly insufficient. It is becoming more important to show the actual human contribution to the creation of a solution, the role of the tools used in the process, and how the workflow was documented. The greater the involvement of generative tools, the more crucial it becomes to determine what was actually created by a human and what resulted from the system.

At the same time, the B2B model is gaining particular importance, as it remains a natural reference point in the IT industry. However, the Personal Income Tax Act is clear: the costs specified in Article 22(9) do not apply to income from business activity. This means that the classic B2B model does not provide a basis for applying 50% KUP, even if the cooperation results in the creation of a work and includes the transfer of copyright. This is one of the most frequently misinterpreted areas in practice, as it conflates two separate logics: the logic of employee copyright-related costs and the logic of business activity settlements.

Moreover, B2B is no longer merely a cost-driven choice. On April 2, 2026, a reform of the National Labour Inspectorate was signed into law. According to the official statement of the Ministry of Family, Labour and Social Policy, its aim is to counteract sham civil-law contracts and more effectively enforce existing regulations. In practice, this means that the decision between B2B and employment with 50% KUP is no longer purely an economic calculation. It becomes a tax, organizational, and evidentiary decision that must reflect the actual nature of the cooperation.

Where the compensation model, task flow, system trace, use of AI, and the real distinction between creative and non-creative work do not form a coherent whole, the risk does not stem from the wording of the contract, but from inconsistencies in the entire model.

Today, the approach to 50% KUP in IT should begin with analyzing whether an organization can genuinely demonstrate how creative work is actually produced—in processes, data, and systems. Only then can the tax preference be both real and safe for taxpayers.