ZUS Optimization via Tokens in Poland: Innovation or Legal Risk?

ZUS Optimization via Tokens in Poland? A new trend has emerged in the Polish market for what its proponents call employee-cost optimization: worker-benefit systems based on blockchain tokens. The companies offering these solutions promise employers substantial savings on social-security contributions while assuring them that their model is entirely legal and grounded in existing law.

ZUS Optimization via Tokens in Poland

But are we witnessing an innovative application of blockchain technology in human-resources management, or merely the latest iteration of an increasingly sophisticated scheme to circumvent payroll obligations? An examination of how these systems actually function, set against recent Supreme Court rulings, leads to disquieting conclusions.

The Promise: Blockchain Technology Changes the Game

The marketing pitch for token-based systems sounds enticing to any entrepreneur struggling with Poland’s steep employment costs. The scheme is straightforward: instead of paying workers their full salary in cash, the employer disburses only a minimal portion in traditional form, transferring the rest as blockchain tokens. These tokens, according to the system vendors, constitute a non-wage benefit—access to specific services available on dedicated digital platforms—and, thanks to an exemption provided in Section 2, Paragraph 1, Item 26 of the social-security contribution regulation, are supposedly not subject to payroll taxes.

The use of blockchain technology serves a dual purpose here. First, it lends the entire enterprise an aura of modernity and innovation—blockchain tokens sound like a product of the future, something that by definition cannot be covered by outdated regulations from the pre-digital era. Second, blockchain as a distributed-ledger technology creates the appearance that tokens are distinct from traditional compensation—since tokens are recorded on a blockchain rather than in a worker’s bank account, surely they cannot be treated the same as an ordinary cash payment.

The operators of these systems frequently cite press articles and legal opinions suggesting that utility tokens, as non-wage benefits, fall within the category of payroll-tax exemptions. For an employer grappling with rising employment costs, in a situation where competitors are also seeking ways to reduce their burden, the prospect of saving dozens of percentage points on payroll expenses sounds like an answered prayer.

The Reality: An Old Mechanism in New Clothes

When we examine in detail how these systems actually function, however, the illusion of innovation quickly dissolves, revealing a mechanism familiar for decades: the division of a worker’s compensation into an official, tax-compliant portion and a hidden part, transferred in a manner ostensibly unconnected to the employment relationship.

The key to understanding the true character of these systems lies in examining three elements: the legal structure proposed to workers, the token-buyback mechanism, and the worker’s symbolic participation in financing the benefit.

Legal Structure as an Admission of Wage Substitution

The documentation for token-based systems is typically constructed in a way that explicitly indicates the replacement of part of the cash wage with tokens. Workers sign statements accepting a specified maximum amount of compensation to be paid in traditional cash form, which in practice means that everything above that threshold is transferred as tokens. Regardless of how subtly this is phrased in the documentation, the economic substance of such a statement is unambiguous: normally—that is, without the token system—the worker would receive compensation higher than the established threshold, paid entirely in cash. The token system is thus not an addition to compensation but a substitute for it—the portion of wages that should be paid in cash and subject to payroll taxes is replaced with tokens.

Employers using these systems often argue that workers voluntarily consent to participate in the benefit program. Yet “voluntariness” in an employer-employee relationship, particularly when the alternative is unemployment or lower total compensation, is a relative concept. In practice, the worker faces a choice: either accept the token system and receive total compensation commensurate with your skills, or receive only the minimal cash portion, rendering the offer unattractive.

Moreover, the documentation typically includes worker declarations of conscious and voluntary participation in the system, without any coercion. Such clauses, familiar from other optimization schemes, aim to create the appearance that the worker, fully aware and willing, is relinquishing part of his cash compensation in favor of a benefit. In reality, however, the formulation of such statements is a standard element of a legal construction designed to defend against the charge that the benefit constitutes a disguised form of wages.

The Buyback Mechanism: Tokens as Quasi-Cash

If tokens genuinely constituted a benefit in the form of access to specific services within a closed digital ecosystem, the system’s logic would be simple: workers interested in those services would use the available options, while uninterested workers simply would not use the benefit. Yet token systems almost always include a mechanism for buying back unused tokens.

A worker uninterested in the services offered within the platform’s ecosystem can sell back the tokens he has received at any time—usually through the employer, who acts based on a power of attorney granted to him and contacts the system operator. The operator buys back the tokens at the purchase price—that is, at the same price at which they were originally sold to the employer. The cash goes to the employer’s account, who then transfers it to the worker.

This buyback mechanism is fundamental to understanding the tokens’ true character. If a worker can at any moment convert tokens back into cash at the purchase price, this means that tokens function, de facto, as an alternative form of money—albeit money that is worthless outside the closed ecosystem of the operator and employer. The worker cannot sell the tokens to a third party, cannot pay with them in a store, cannot exchange them for other cryptocurrencies. The only things he can do are use them to access services within the platform or sell them back for cash.

Such a construction reveals that the system’s true purpose is not to provide workers with access to valuable services as an employee benefit. If that were the case, the buyback mechanism would be superfluous—workers interested in the platform’s offerings would use it, while those uninterested simply would not receive tokens, or would receive them in symbolic amounts. The buyback mechanism makes sense only when tokens serve as a vehicle for monetary value that must be accessible to the worker regardless of whether he is interested in using the platform.

Symbolic Worker Participation: A Façade of Payment

Token systems typically stipulate that the worker bears some cost associated with participation in the program—often an amount on the order of a few zlotys per month, deducted from wages. This symbolic fee is crucial to the system’s legal construction, because it allows the argument that the worker is “purchasing” access to services at a price lower than market rate, which supposedly corresponds to the provision of Section 2, Paragraph 1, Item 26 of the social-security regulation.

Yet an analysis of the proportions reveals the absurdity of this argument. If the employer transfers to the worker tokens worth, say, several thousand zlotys annually, while the worker pays a few dozen zlotys annually for them, this means the worker bears a fraction of a percent of the benefit’s value. Under such circumstances, it is difficult to speak of a “purchase” in any economic sense. In essence, the employer is transferring to the worker a gratuitous benefit of a specified monetary value, with the symbolic fee serving merely to create the appearance of payment for purposes of formal legal construction.

By comparison, genuine employee benefits based on preferential pricing typically assume that the worker bears a substantial portion of the cost—for example, fifty to seventy per cent of the market price. Such a proportion makes economic sense, because the benefit lies in the employer’s having negotiated, through his purchasing power, more favorable terms from the service provider and making those terms available to workers. In token systems, the proportion is entirely inverted—the employer bears nearly the entire cost, while the worker’s share is so negligible that it has no economic significance.

Obscuring the Mechanism Through Technology

A key element of the entire construction is the use of blockchain technology to give the token the appearance of being distinct from ordinary cash wages. Tokens are issued as units based on cryptocurrency standards, which gives them technical characteristics associated with futuristic digital assets—things everyone has heard about but few understand. However, a closer look at this issue shows that ZUS optimization via tokens in Poland is carried out using tokens that do not have any of the characteristics of real cryptocurrencies.

According to the definition contained in the anti-money-laundering statute, a virtual currency is a digital representation of value that is accepted as a medium of exchange and can be the subject of electronic trade. Tokens in optimization systems do not meet these criteria—they are not accepted as a medium of exchange outside the closed ecosystem of a single platform, cannot be freely transferred between users, and their only application is limited to using specific services within the operator’s platform. They are, in essence, digital vouchers or loyalty points that use blockchain technology merely as technical infrastructure for their issuance and transfer.

The use of blockchain technology in this context serves primarily a marketing function and aims to create the impression that tokens constitute an innovative technological instrument that, by virtue of its novelty, does not fit within traditional legal categories concerning wages and payroll taxation. From a legal standpoint, however, the application of blockchain technology does not change the economic essence of the transaction. Tokens in optimization systems function exactly like traditional merchandise vouchers issued in paper form or in ordinary databases by employers for decades. The only difference is that instead of handing the worker a paper voucher or a code in a traditional database, the employer gives him a token recorded on a blockchain. This technical difference has no legal significance for the classification of the benefit as wages subject to payroll taxes.

In sum, the actual economic mechanism of token systems is this: the employer pays the worker a small portion of wages in cash, with the remainder—often the dominant share—in the form of tokens, which can be used to access services within a closed digital ecosystem or sold back for cash. The whole constitutes the worker’s compensation for work performed, regardless of the form in which it is paid. The use of blockchain technology and a complex transaction structure involving an external operator aims to obscure this fact and create the appearance that tokens constitute a separate non-wage benefit.

Confrontation with Case Law: A Series of Failures for Analogous Schemes

Enthusiasts of token systems often argue that since legal regulations contain no explicit prohibition on using tokens as employee benefits, and blockchain technology is relatively new, regulatory agencies and courts have no basis for challenging these solutions. Yet Poland’s Supreme Court and appellate courts already have behind them a series of rulings concerning various forms of employee benefits that employers attempted to exclude from payroll taxation, and in the vast majority of cases the courts sided with a broad understanding of the contribution base.

Fuel Cards: Benefit or Wages?

The fuel-card case reached the Supreme Court’s Panel of Seven Judges, which testifies to its fundamental importance for interpreting regulations on the taxation of employee benefits. In a ruling dated February 26, 2020 (case number I UK 58/19), the Supreme Court considered whether the benefits a worker derives from being provided with a personal fuel card, which allows the purchase of fuel for a fixed monthly amount, are excluded from the contribution base under Section 2, Paragraph 1, Item 26 of the social-security regulation.

Employers argued that fuel cards constitute a benefit in the form of partially paid use of means of locomotion, which literally falls within the wording of the provision on exclusion from payroll taxation. The Supreme Court, however, rejected this argument, finding that the benefits a worker derives from being provided with a fuel card are not excluded from the contribution base. The Court indicated that the exemption provision primarily concerns situations in which the employer organizes transportation for workers in connection with performing work, not situations in which he finances workers’ costs of using their private vehicles.

The analogy to token systems is obvious here. Like fuel cards, tokens do not constitute a service directly connected with the worker’s performance of his job but are a general benefit with monetary value that can be used for various purposes specified within the platform. Like fuel cards, tokens are financed almost entirely by the employer, with the worker’s share being symbolic. And, as with fuel cards, the system’s true purpose is not to provide workers with a specific work-related benefit but to transfer to them part of their wages in a form ostensibly not constituting wages.

Company Cars for Private Use: The End of Illusions

A series of Supreme Court rulings concerning the provision of company cars to workers for private use constitutes another step toward broad interpretation of the contribution base and narrow interpretation of exclusions.

The Supreme Court undertook a detailed analysis of the ratio legis of Section 2, Paragraph 1, Item 26 of the social-security regulation and found that the essence of the privilege under this provision is the possibility of purchasing only certain goods or services at a price lower than the retail price. Of key importance is the Court’s statement that this provision concerns a privilege consisting in the possibility of purchasing, more cheaply by virtue of the employment relationship, goods or services sold on the market by the employer. Only thus can one explain the legislator’s specification of the content of the permitted privilege through enabling purchase at prices lower than retail.

This ruling has fundamental significance for evaluating token systems. It follows that the exclusion from payroll taxation applies primarily to situations in which the employer conducts business activity consisting of selling specific goods or services and enables his workers to purchase those goods or services at preferential prices. A classic example is a retail chain whose workers can buy merchandise at a discount, or a transportation company offering its workers free travel.

In the case of token systems, the employer does not conduct activity related to the services offered within the digital platform’s ecosystem, does not offer those services on the market, is not the platform’s owner. The employer merely purchases tokens from an external operator and transfers them to workers. One cannot, therefore, speak of workers purchasing services from their employer at prices lower than market rates, because the employer does not offer those services as part of his business activity at all. In essence, we are dealing with a tripartite construction in which the employer intermediates between the system operator and the workers, financing the preponderant share of the workers’ cost of accessing an external entity’s platform.

Cafeteria Systems: A Direct Precedent

Particularly significant for evaluating token systems is a ruling by the Wrocław Court of Appeals dated September 13, 2016 (case number III AUa 411/16), which concerned a cafeteria-style points system. This case is nearly the perfect equivalent of token systems—the employer introduced a points platform in which each point had a specified monetary value, points were financed by the employer with minimal worker participation, and workers could exchange points for various services offered by external providers.

The Court of Appeals had no doubt that such a system constitutes a motivational compensation system that does not fall within the category of payroll-taxation exclusions. The Court explicitly indicated that the circumstance that the employer placed the redistribution of specific services in workplace regulations constituting a workplace source of labor law does not automatically mean that every such benefit corresponds to the provision on exclusion from payroll taxation. The Court emphasized that cafeteria benefits can be described as a package compensation system whose subject is the provision of specific services to workers following the worker’s choice of how to use accumulated points.

The similarities between cafeteria systems and token systems are striking. In both cases, we are dealing with points or tokens having a specified monetary value. In both cases, the employer finances the preponderant share of the points’ or tokens’ value. In both cases, the system is introduced as a motivational element and as an alternative to traditional cash wages. In both cases, the worker can choose how to use the points or tokens according to his own preferences. The only substantial difference is that token systems use blockchain technology, while traditional cafeteria systems rely on ordinary databases. This difference, though technically interesting, has no legal significance for classifying the benefit as wages subject to payroll taxation.

Group Life Insurance: The End of the Fiscal-Cost Argument

Also worth citing is a ruling by the Kraków Court of Appeals dated July 19, 2016 (case number III AUa 1260/15), which concerned group life insurance paid for by the employer. The Court found that the obligation for the worker to bear the costs of income-tax withholding on income consisting of the insurance premium paid by the employer does not justify omitting the value of that premium from the base for calculating social-security contributions.

This ruling has significant bearing on the argument employed by promoters of token systems. They frequently maintain that since the worker must pay income tax on the value of the tokens received, this means the benefit is not entirely free for him and therefore should be treated as purchasing a service at a preferential price, rather than as additional wages. The case law unequivocally rejects this argument—the fact that the worker bears tax burdens associated with receiving the benefit does not change the benefit’s character as income from an employment relationship subject to payroll taxation.

Article 8, Paragraph 2a: A Sword of Damocles Over Tripartite Schemes

Beyond the risk associated with direct classification of tokens as income subject to payroll taxation, token systems are exposed to additional risk stemming from Article 8, Paragraph 2a, of the Social Security System Act. This provision, introduced as an anti-optimization regulation, states that if, as a service performed for one’s own employer, persons perform work under civil-law contracts, and the subject and conditions of the service correspond to an employment relationship, those persons are subject to insurance as employees.

Though this provision in its literal text concerns situations of dual employment—when the same person is employed by an employer under an employment contract and simultaneously provides services to him under a civil-law contract—Supreme Court case law has extended its application to more complex constructions.

The analogy to token systems is direct here. The worker receives a small portion of compensation from the employer in cash, with a significant part in the form of tokens from the system operator, formally through the employer, who purchases the tokens and organizes their distribution. Economically, however, the whole constitutes compensation for work performed for the benefit of the employer. The token-system operator plays a role analogous to the leasing company in the case discussed—he is a third party participating in a construction that allows the employer to transfer to the worker part of his compensation in a manner ostensibly not giving rise to a payroll-taxation obligation.

If Z.U.S. applies Article 8, Paragraph 2a, to token systems, the consequences will be serious. The employer will be obligated to pay full contributions on the total value of workers’ wages, including the value of tokens, retroactively for the entire period of using the system, together with interest and penalties. Additionally, the risk of joint and several liability may extend to the system operator as well, if Z.U.S. finds that the operator knowingly participated in a construction aimed at avoiding payroll taxation.

International Experience: A Series of Failures for Similar Schemes

The Polish market is not the first in which attempts have appeared to use alternative forms of wage payment to circumvent payroll and tax obligations. The experiences of other countries, particularly the United Kingdom, Belgium, and the Netherlands, are highly instructive and show how similar schemes ended.

Employee Benefit Trusts in the United Kingdom: Retrospective Catastrophe

The most spectacular example of an optimization scheme’s failure is the British Employee Benefit Trusts (E.B.T.). This system functioned as follows: the employer paid workers a minimal wage subject to full taxation and payroll contributions, while transferring the remaining portion of compensation to a trust, which then extended “loans” to workers that were never repaid. Formally, the loans did not constitute the worker’s income, so they were not subject to taxation or payroll contributions.

This scheme functioned for many years and was used by thousands of employers and tens of thousands of workers, including at reputable firms and public institutions. E.B.T. promoters assured everyone that the construction was fully legal and accepted under British tax law. Reality, however, proved brutal.

H.M.R.C., the British equivalent of Poland’s tax office, after years of tolerance, determined that E.B.T.s constituted a tax-avoidance scheme and that the “loans” were in essence wages subject to taxation and payroll contributions. In 2019, British legislation introduced a retrospective tax charge on all unpaid “loans” from E.B.T.s dating back to 1999—that is, twenty years back. Thousands of people who had used E.B.T.s were burdened with tax liabilities sometimes reaching hundreds of thousands of pounds.

What is more, persons involved in promoting and managing E.B.T. schemes were held liable under the Criminal Finance Act of 2017 for facilitating tax avoidance. Many people who believed they were using a legal solution offered by professional advisers found themselves facing bankruptcy or had to sell their homes to pay off tax arrears.

Loyalty Points in Belgium and the Netherlands: The End of the Illusion

In Belgium and the Netherlands, employers attempted to use schemes based on loyalty points, in which workers received points exchangeable for goods or services instead of part of their cash wages. The argument was similar to that currently used in Poland in the context of blockchain tokens: loyalty points are not money, so they should not be treated as wages subject to payroll taxation.

Tax authorities in both countries consistently rejected this argument and found that loyalty points awarded by an employer to workers in connection with an employment relationship constitute wages subject to full payroll taxation and income taxation, regardless of the form in which they are awarded. Crucial for the tax authorities was that these points replaced part of the cash wages that would normally have been paid to the worker, and their primary purpose was to avoid payroll obligations.

Why Blockchain Does Not Change the Rules of the Game

Promoters of token systems often argue that the use of blockchain technology makes their solution fundamentally different from traditional optimization schemes, and that courts and regulatory agencies lack the tools to evaluate such innovative constructions. This argument, however, is flawed for several reasons.

First, tax law and social-security law rests on the principle of substance over form—what matters is the economic content of the transaction, not its formal legal construction or the technology used to carry it out. If the economic content of a transaction is that the employer is paying the worker part of his compensation in a form alternative to cash, the fact that this alternative form uses blockchain technology instead of a traditional database has no legal significance.

Second, tokens in optimization systems are not true cryptocurrencies or virtual currencies within the meaning of applicable regulations. The definition of virtual currency contained in the anti-money-laundering statute requires that a given unit be accepted as a medium of exchange and be capable of being the subject of electronic trade (read also The Blockchain Panopticon: When Legal Crypto Trading Becomes Criminal Suspicion). Tokens in optimization systems do not meet these criteria—they are closed loyalty points or vouchers that can be used only within the operator’s ecosystem and cannot be freely transferred to third parties. Blockchain here is merely the technical infrastructure for issuing and transferring these points, just as a traditional database was the infrastructure for cafeteria systems.

Third, even if tokens were true cryptocurrencies, this would not change the fact that if they are awarded to workers as part of compensation for work, they are subject to payroll taxation. Tax authorities around the world consistently treat cryptocurrencies received as compensation for work on the same basis as compensation in traditional currency. In the U.S., the I.R.S. has for years required that employers report the value of cryptocurrencies paid to workers as wages and withhold appropriate taxes („fair market value of virtual currency paid as wages (…) is subject to federal income tax withholding, FICA and FUTA and must be reported on Form W‑2„). An analogous approach prevails in European countries (check also Cryptocurrency: Legal and Tax Services).

The Economics of Desperation: Reduce employment costs in Poland

It is worth asking: why do such schemes arise and develop at all, despite obvious legal risks? The answer lies in the economics of Poland’s labor market and in the desperation of entrepreneurs struggling with rising employment costs.

Social-security contributions in Poland, totalling around forty per cent of gross wages (taking into account portions paid by the employer and the worker), are among the highest payroll burdens in Europe.

In a competitive business environment where margins are increasingly narrow and costs are rising, entrepreneurs face a dilemma: either seek ways to reduce employment costs in Poland and remain competitive, or accept higher costs and risk losing market position to competitors who find ways to optimize. When competitors use optimization schemes and thereby can offer lower prices or higher wages to workers at the same employer cost, entrepreneurs who comply with all regulations feel themselves at a disadvantage.

In this situation, the appearance of operators offering “innovative solutions” based on blockchain technology, supported by fragments of opinions from lawyers and tax advisers suggesting the system’s legality, seems an answer to entrepreneurs’ problems. The enticing promise of saving dozens of percentage points on payroll costs while maintaining the appearance of legality attracts entrepreneurs desperate from high costs and competitive pressure.

Yet, as international experience and Polish case law show, such solutions always end badly for all involved parties. The illusion of legality, built on complex legal constructions and the use of new technologies, shatters the moment it confronts regulatory agencies and courts, which consistently apply the principle of substance over form and evaluate the economic content of transactions, not their formal construction.

ZUS Optimization via Tokens in Poland: Innovation or Dangerous Illusion?

An analysis of the functioning mechanisms for ZUS Optimization via Tokens in Poland, confrontation with current Supreme Court case law, and a review of international experience with similar schemes leads to an unambiguous conclusion: these systems do not constitute legal innovation in human-resources management but are merely the latest iteration of old schemes for avoiding payroll taxation, dressed up in modern technology.

The use of blockchain technology for issuing and transferring tokens does not change the fundamental fact that these tokens function as a substitute for the portion of cash wages that would normally be paid to workers and subject to payroll taxes. The token-buyback mechanism, the worker’s symbolic participation in financing the benefit, and the construction of legal documentation indicating maximization of cash payment unambiguously show that the system’s true purpose is not to provide workers with a valuable benefit in the form of access to digital services but to enable the employer to pay wages in a manner ostensibly avoiding payroll taxation.

Supreme Court case law concerning fuel cards, company cars, and cafeteria systems leaves no illusions about how courts will evaluate token systems in the event of a dispute with Z.U.S. Courts consistently apply a broad interpretation of the contribution base and a narrow interpretation of exclusions from payroll taxation, rejecting arguments based on formal legal construction and focussing on the economic essence of benefits. Additionally, Article 8, Paragraph 2a, of the Social Security System Act, whose application is being extended by case law to increasingly complex tripartite constructions, constitutes an additional risk for token systems.

International experience, particularly the catastrophe of British Employee Benefit Trusts, shows that promoters of optimization schemes always assure everyone of the legality of their solutions and present fragments of expert opinions supporting them, yet at the moment of confrontation with regulatory agencies it turns out that those guarantees were an illusion, and all participants in the system bear severe financial and legal consequences.

For entrepreneurs considering implementing a token system, the message is clear: short-term savings on social-security contributions are not worth the long-term risk of being burdened with back contributions together with interest and penalties, which can amount to many times the savings. For workers, the message is equally clear: participation in an optimization system can result not only in tax arrears but also in underpayment of pension and disability contributions, which will translate into lower benefits in the future. For operators of token systems, the message is most emphatic: conducting business activity based on providing tools for avoiding payroll obligations carries not only the risk of civil liability but also the risk of criminal liability and complete loss of reputation.

True innovation in human-resources management should consist in increasing the value offered to workers, not in seeking ways to circumvent employer obligations. Blockchain technology has enormous potential in many fields, including professional education and competency certification, but using it as a tool for obscuring the true character of wage transactions is an abuse that will inevitably meet with a response from regulatory agencies and courts (see Litigation and Court Representation Services).

Robert Nogacki

Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.