Activities of Artistic Employees and Preferential Tax-Deductible Costs: Approving Commentary to the Judgment of the Supreme Administrative Court of 14 March 2019 (II FSK 673/17, LEX no. 2665530)

Abstract

The commentary discusses an issue which has so far given rise to many difficulties in interpretation. It concerns the assessment of the legal nature of a wide range of diverse activities performed by professional musicians under an employment relationship (e.g., participation in various types of rehearsals before a concert), both from the point of view of copyright law and tax regulations. The challenge of interpreting the notion of “artistic performance” in the context of the emerging divergences in interpretation was taken up by the Supreme Administrative Court in the judgment of 14 March 2019 (II FSK 673/17), which was reviewed. Undoubtedly, this is a decisive step in the right direction. Until now, it has repeatedly (unfortunately incorrectly) been assumed in the practice of applying the law that rehearsals or exercises of professional musicians cannot enjoy the attribute of “artisticity” and therefore do not qualify for copyright protection for related rights consisting in “artistic performance of a work”. The argumentation that such attempts are only a technical, repetitive reproduction of a musical notation, deprived of the value of the artist’s individual interpretation, should be regarded as unfounded. The aim of the research carried out in this commentary is to present the disputed normative area at the junction of copyright and tax regulations, in particular by referring to the interpretation difficulties arising in connection with decoding the meaning of the term “artistic performance of a work”. The above has not only an intra-system meaning (within the private law regulations), but also an extra-system meaning (within the public law regulations). In particular, this concerns the scope of correct application of tax preferences towards artists-musicians. The analysis of the course of narration of the cited ruling allows the formulation of de lege lata and de lege ferenda conclusions, which in turn may point the way towards stabilising the legal situation of taxpayers exercising the profession of musician. The article uses mainly the dogmatic-legal method and the auxiliary historical-legal method.