Employing staff in Poland for an indefinite period, having them regularly work remotely from Poland and providing them with company laptops are not, in themselves, sufficient to create a permanent establishment (PE) of a foreign company in Poland. This follows from the judgment of the Supreme Administrative Court of 22 January 2026, case no. II FSK 556/23.
Two IT specialists working permanently from Poland
The case concerned an Irish company developing online mobile strategy games. The company planned to employ two individuals in Poland who would support it in developing technologies used in the production of its games.
Their responsibilities were to include, among other things, improving backend services, developing related tools and libraries, and co-designing game architecture with a focus on low latency, scalability and consistency of gameplay. The employees were to be hired for an indefinite period and perform their work in Poland on a permanent and regular basis.
The company did not, however, intend to establish an office in Poland. The employees were to choose their place of work themselves and would be provided by the employer with laptops and other necessary equipment. They would also have no authority to act on behalf of the company, make decisions binding on the enterprise or conduct sales activities.
Tax authorities: a home office may constitute a permanent establishment
The Director of the National Revenue Information concluded that such an employment model would result in the creation of a permanent establishment in Poland. According to the authority, despite the absence of premises owned or leased by the company, providing employees with computer equipment and the permanent nature of their work would create a fixed place of business.
The authority also rejected the view that the employees’ activities were merely auxiliary. In its opinion, work related to the development of technology used in the games formed part of the core business of the Irish developer.
This approach was initially accepted by the Provincial Administrative Court in Gliwice. The court held that, in the context of remote work, the place from which an employee regularly performs their duties may be regarded as a place of business of the enterprise.
The Supreme Administrative Court took a different view.
An employee’s home does not automatically become the employer’s place of business
The Supreme Administrative Court pointed out that the company had no right to dispose of the place from which the employees performed their duties. It neither controlled that location nor required the employees to provide it with any specific, designated workspace.
According to the Court, merely providing an employee with a laptop enabling remote work does not mean that the space used by the employee is placed at the disposal of the foreign enterprise. Adopting the opposite view would, in practice, lead to the conclusion that a place of business arises wherever an employee decides to perform their professional duties.
Importantly, the employees were to be hired for an indefinite period and their work from Poland was to be continuous and regular. Nevertheless, the Supreme Administrative Court held that this was not sufficient to establish a fixed place of business.
A programmer working on a product may still perform an auxiliary function
Another interesting aspect of the judgment concerns the nature of the tasks performed by the Polish employees.
These were not merely administrative activities or typical back-office functions. The employees were to work on technology used in the development of games, including backend services, tools and libraries, as well as the technical architecture of the games.
Despite the relatively close connection between these activities and the product offered by the company, the Supreme Administrative Court considered them auxiliary to its core business, which consisted in developing mobile strategy games.
The Court noted that the employees were to support the company in developing technology. The scope of responsibilities assigned to them did not, however, justify the conclusion that they were carrying out a significant part of the enterprise’s overall business activity in Poland.
This is an important indication for the IT and gaming sectors. An employee’s involvement in product or technology development does not necessarily mean that they are performing the enterprise’s core business activity. The assessment will, however, always depend on the actual scope of the employee’s responsibilities and the significance of the local team to the business as a whole.
This is no longer an isolated favourable judgment
The judgment of 22 January 2026 forms part of a broader line of case law. The Supreme Administrative Court referred to its earlier judgments in cases II FSK 609/22, II FSK 610/22 and II FSK 163/23 and endorsed the reasoning presented in those cases.
An increasingly clear approach is therefore emerging under which an employee’s private home, or another place chosen by the employee to perform their work, should not automatically be regarded as a fixed place of business of a foreign enterprise.
What does the judgment mean in practice?
The judgment is favourable for foreign businesses employing remote workers in Poland, particularly in the technology sector. It does not, however, mean that such an arrangement can never result in the creation of a permanent establishment.
The key factors remain, in particular, whether the employer has the right to use or dispose of the place of work, how the work is organised, the actual scope of the employees’ responsibilities and whether they have authority to represent the company.
The Supreme Administrative Court’s judgment confirms, however, that the mere fact that an employee works permanently from Poland, even where their activities relate to the development of a foreign company’s product, does not automatically result in the creation of a permanent establishment in Poland.
Mikołaj Ratajczak
Partner
