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New draft law introducing the mandatory use of the National e-Invoicing System (KSeF)

On March 15, a draft law was published on the Government Legislation Center regarding the mandatory use of the National e-Invoicing System (KSeF).
Gerard Goliasz
Senior TAX Specialist

Essential information emerging from the new draft:

  1. The KSeF comes into force on July 1st, 2024, for active VAT taxpayers. For VAT exempt taxpayers, the effective date of the KSeF will be January 1st, 2025.
  2. The obligation of issuing invoices in KSeF for consumers (natural persons) has been removed.
  3. The compulsory inclusion of foreign taxpayers with a fixed establishment (FE) in the territory of Poland in the KSeF has not been withdrawn. It has only been clarified that this refers to FEs which participate in transactions from which an invoice will be issued. In consequence, a taxpayer with an FE in the territory of Poland but issuing an invoice in the context of other economic operations not related to that FE, will not have to use the KSeF for this purpose, unless he voluntarily chooses to do so.
  4. The legislator eliminated provisions which required information on the obligation to use KSeF by specific taxpayers to be included in the register of VAT taxpayers, in the so-called white list. Thus, this problematic issue, which was raised during consultations in the course of work on the act, has been shifted onto the taxpayers themselves - now it is the taxpayers themselves who will unequivocally have to determine whether they possess an FE in the territory of Poland. Given the fact that this issue is extremely difficult, and doubts and divergent positions are taken by the tax authorities themselves, shifting this responsibility to taxpayers and stipulating severe penalties for a failure to issue invoices in the KSeF, seems like an inappropriate approach, to say the least. However, during consultations on the new draft, the Ministry of Finance indicated that it would prepare guidelines for the determination of an FE. However, it must be assumed that given the guidelines issued to date, this will certainly not dispel all doubts, and the responsibility will remain with the taxpayers. It is also difficult to say at this stage what form these guidelines may take, i.e. tax explanations, which have a protective legal force for taxpayers who comply with them, or explanations, which will not have such a force. Moreover, it is difficult to say if and when such guidelines will appear.
  5. The penalty for a failure to issue an invoice is to be up to 100% of the VAT amount on the invoice, thus the penalty will be measured and not, as in the previous draft, fixed at 100% of the VAT amount.
  6. Using the exchange rate to convert invoices in a foreign currency has been made possible. This will be based on the date of the invoice’s issuance, on the day proceeding the day of the structured invoice’s issuance by the taxpayer, given that the invoices will be issued in KSeF on the following day at the latest.
  7. The possibility of malfunctions of the taxable person's system has been considered. In such a situation, the taxable person is obliged to issue offline structured invoices and send them to KSeF on the next working day at the latest; failure to comply with this obligation is subject to a sanction of up to 100% of the VAT amount resulting from the invoice.
  8. The draft abandons the solution of using adjustment notes - issued in KSeF and outside KSeF - by purchasers. After the changes, a correction invoice will be issued regardless of the reason for changing data on the invoice.
  9. Additionally, the draft discards the obligation to possess additional documentation confirming an agreement with the purchaser of goods. or the recipient of services, on the conditions for reducing the taxable base in the case of an adjustment reducing the taxable base.

You can read the draft here.

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