Tax Alert: New bill on mandatory use of the National e-Invoicing System

Mandatory e-invoicing will cover activities that currently need to be supported by an invoice issued in line with the VAT Act provisions, i.e., activities subject to VAT, including supplies of goods and provisions of services between companies (B2B) and to public authorities (B2G). Obligation to issue structured invoices (e-invoices) will be imposed on taxpayers who:

• perform activities subject to the invoicing obligation under Polish VAT regulations,
• have a seat or a fixed place of business in Poland (where the fixed place of business actually participates in the supply of goods or provision of services).

KseF will also be used to issue:

• correcting invoices – regardless of whether the original invoices were issued with the use of or outside KSeF – if they are issued by a taxpayer having a seat or fixed place of business in Poland, where the fixed place of business participates in the transaction, and
• VAT RR and VAT RR KOREKTA invoices (invoices issued under the special procedure for entities buying agricultural products and selected services from farmers), optionally. 

• Mandatory e-invoicing will exclude invoices issued to natural persons not conducting business activity (B2C). Importantly, voluntary use of KSeF in this case is now prohibited, which is a major amendment as regards to the previous version of the bill.
• As per the exceptions provided for by the bill, e-invoicing will exclude taxpayers applying three special schemes (non-Union scheme for certain services, special scheme on occasional international road carriage of passengers, and special scheme for distance sales of goods imported from third territories or third countries).
• Moreover, pursuant to the draft implementing decree to the VAT Act, mandatory e-invoicing will not cover train and plane tickets, motorway tolls, and air navigation control services (Eurocontrol).

Furthermore:

• Taxpayers under subjective tax exemption (small businesses) or performing only tax-exempt activities in line with Article 43(1) of the VAT Act or secondary legislation will be expected to use KSeF only from 01 January 2025.
• E-invoicing will be optional for taxpayers not having their seat or fixed place of business in Poland or having a fixed place of business which is not involved in the transaction.

Abandonment of the "correcting invoice proposal" and simultaneous liquidation of corrective notes – as a result of public consultations, the Ministry of Finance decided to withdraw from introduction of the so-called "correcting invoice proposal", which was to be issued by buyers via KSeF. At the same time, the possibility of issuing corrective notes was revoked. Now, the only way to adjust the invoice will be to issue a correcting invoice via KSeF.

Amendments to the regulations on the applied exchange rate – taxpayers supplying goods or providing services for whom the tax point arises at the time of issuing the invoice will be able to convert the tax into PLN at the average exchange rate of a given foreign currency announced by the National Bank of Poland on the last working day preceding the date of issuing the invoice indicated in field P_1, provided that the e-invoice will be uploaded to KSeF not later than on the date following the date indicated in field P_1.

Sanctions for defective use of KSeF to be relaxed and their entry into force to be delayed – the minimum fine has been waived, however, any taxpayer who fails to perform their obligations by:

• not issuing an invoice in the National e-Invoicing System,
• issuing an invoice not in accordance with the template provided,
• not uploading an invoice into the National e-Invoicing System within the stipulated deadline

is still subject to a fine amounting up to 100% of the tax shown in the invoice issued outside the National e-Invoicing System and - in the case of invoices without the indicated tax - a fine up to 18.7% of the total amount due indicated on the invoice issued outside the National e-Invoicing System, to be imposed by the head of the tax office. Pursuant to the bill, penalties will start to apply only after the first six months of the mandatory use of KSeF i.e., from 01 January 2025.

Special procedure in the event of the system’s failure on the taxpayer’s side: the off-line mode – in the event of the system’s failure on the taxpayer’s side, taxpayers will have the possibility to issue invoices off-line, following the e-invoice schema. In such an event, the invoice should be uploaded to KSeF the next working day. Importantly, it was clarified that invoices issued off-line (because of a failure on the taxpayer’s or the System’s side) should bear a “QR” code for verification.

No possibility of issuing invoices using cash registers – the limitation enters into force on 01 January 2025.

NIP-bearing receipts up to PLN 450 (EUR 100) and other types of simplified invoices issued on paper or electronically will continue to be considered as simplified invoices until 31 December 2024.  This means that, as a rule, simplified invoices, including fiscal receipts bearing the buyer's NIP number up to PLN 450 can be issued in the current form for another six months from the date of entry into force of the Act.

Starting from 01 January 2025, simplified invoices (with the exception for invoices specified in the regulations issued under delegation of legislative powers as stipulated in Article 106s) will be obligatorily issued via KSeF  – with a limited scope of information, as so far.

Starting from 01 January 2025, e-invoicing will also become mandatory for taxpayers under subjective tax exemption or performing only tax-exempt activities, in the form of simplified invoices with a limited scope of information.

Upholding the obligation to provide KSeF ID (or a collective identifier) ​​in bank transfer orders for invoices issued via KSeF – the Entrepreneur Law imposes on the buyer of the goods or services indicated on the invoice, being a VAT payer registered as an active VAT payer, making payments for structured invoices, to another VAT payer registered as an active VAT payer, through a bank account in a bank with its seat in the territory of the country, a bank account in a branch of a foreign bank or an account in a cooperative savings and credit union, the obligation to provide the number identifying these invoices in the National e-Invoicing System (KSeF ID)

The bill also clarifies the principles of adjusting the input/output tax based on correcting invoices issued off-line (because of a failure on the taxpayer’s side or failure/unavailability of the System) – a principle was introduced, according to which should such a situation arise, the supplier reduces the taxable base and the tax due in the taxable period in which they received confirmation that the correcting invoice was received by the buyer. In turn, the buyer is expected to reduce the input tax in the period in which they received the off-line correcting invoice, but where the date of receipt of the correcting invoice by the buyer is later than the date of assigning the number identifying this invoice in the National e-Invoices System, the date of receipt of this invoice shall be the date of assignment of this number.

Abandonment of amendments to provisions governing the date of issuing invoices before the supply/performance of the service – in response to the remarks made by taxpayers, the Ministry of Finance decided to withdraw the proposed amendments to Article 106i(7-8), restricting the possibility of issuing invoices before the supply/performance of the service. Consequently, according to the wording of provisions currently in force, taxpayers can issue invoices no earlier than 60 days before the supply/performance of the service.

The bill brings a raft of regulations related to leaving only the possibility of online handling of the following documents: Binding Tariff Information (BTI), Binding Origin Information (BOI), Binding Excise Information (BEI), and Binding Rate Information (BRI), through extension of the EBTI-PL2 system and connecting it to the e-Tax Office [e-Urząd Skarbowy] system in the field of BRI and to the PUESC system in the field of BTI, BOI and BEI, jointly referred to as the e-BRI project. This will enable the handling of binding information only in electronic form, using a dedicated IT system, including the all-online handling of cases in appeal procedures (including complaints) and in the case of changes and repeals (BRI, BEI), as well as withdrawals and cancellations of BOI and BTI.