Obligatory KSeF. Significant changes in the new bill

After consultations, it was also clarified that in the event of a KSeF failure on the part of the Ministry of Finance, taxpayers will have 7 working days after the failure ceases to upload an invoice to the System.

Invoices and correction notes

The draft amendment to the VAT Act of November 30, 2022 stipulated that a taxpayer would be able to issue a correcting note only with respect to an invoice issued and received outside the KSeF (and thus in those few cases where such action was permissible). However, the existing rules regarding the issuance of the note were not to change, i.e. it was still to be necessary for it to be accepted by the issuer of the original invoice. At the same time, the legislator planned to introduce an alternative way of correcting mistakes (except for those involving data in the form of, among other things, the net value of the invoice and the amount of tax) when using KSeF, i.e. by issuing a so-called proposal correcting invoice.

Eventually, the Ministry of Finance withdrew from the implementation of the “proposal of correction invoice,” indicating that it involves risks in the use of this type of solution and the difficulty of its implementation. Instead, the possibility of issuing correction notes is to be eliminated both for documents issued in KSeF and outside the System.

It seems, therefore, that making any changes to the data contained in the invoice will only be possible through the issuance of a correction invoice by the seller. This may be problematic, since the issuance of a correction note often allows for simple and quick correction of the buyer’s data, without significant involvement of the supplier (who is only supposed to accept the note).

In terms of correcting invoices – in the event of a KSeF failure and the need to issue corrections offline – the consistent rules adopted for e-invoices will apply. During the period of failure and offline, it will be possible to issue a correction invoice only to invoices with a KSeF number. On the other hand, it will not be possible to issue corrections to invoices that were issued during the outage period and in offline mode and which – thus – have not been assigned a KSeF number.

Permanent place of business vs. KSeF

One of the demands made during the public consultations was to exclude taxpayers with a permanent place of business (SMPD) in Poland from the obligatory KSeF.

In the end, the legislator left this solution in place, indicating that it was the result of the European Union’s mandate. However, some of the issues related to this issue will be clarified. Transactions carried out without the SMPD will be excluded from e-invoicing, and taxpayers will retain the right to deduct VAT from a document issued outside the KSeF in the event of an erroneous or delayed recognition by the taxpayer that it has an SMPD in Poland.

The list of taxpayers (the so-called White List of VAT taxpayers) will not show the SMPD designation, which would inform taxpayers of the obligation to issue e-invoices, which could be problematic from the point of view of the issuer of such a document. However, the Finance Ministry has announced the issuance of tax clarifications on the criteria for the existence of SMPD in Poland.

Consumer invoices and tickets

The February 22, 2023 draft amendment to the VAT law confirmed the announcements regarding consumer invoices and tickets acting as invoices. Last year’s draft still stipulated that consumer invoices (B2C) would be subject to obligatory KSeF, and additionally provided for the possibility of transmitting them in a manner agreed upon with the buyer and marking them with a verification code. In turn, consumers were to be given the option to download such an e-invoice via “anonymous” access, including through a dedicated invoicing application.

The new bill maintains the existing rules for consumer invoices, which means that they will not be covered by KSeF – both obligatory and voluntary.

Also to be excluded from KSeF are tickets fulfilling the role of invoices, i.e. toll highway receipts, traffic tickets and invoices issued for the provision of air traffic control and surveillance services (Eurocontrol), among others.

Other changes

The Finance Ministry has also provided for other changes to the existing bill introducing the obligatory use of the KSeF, including:

• exclusion from the System of invoices issued in OSS and IOSS procedures;
• allowing invoices from cash registers to be issued in the existing form until December 31, 2024;
• recognition of simplified invoices in the current form until December 31, 2024;
• changing the concept of an invoice and introducing a provision that documents issued without KSeF are not considered invoices;
• clarification of the requirements for providing the KSeF number when paying through a bank or SKOK with its seat in the national territory/branch of a foreign bank;
• introduction of simplifications in JPK_VAT and maintaining the obligation to generate JPK_FA only for invoices issued outside KSeF, including consumer invoices;
• adjustment of PKPiR (revenue and expense ledger) to KSeF implementation.

Are these all the changes yet? 

As you can see, the Finance Ministry has backed off from some controversial changes, particularly with regard to the possibility of issuing invoices before the delivery of goods and services. It is not without significance that the implementation of the obligatory KSeF has been postponed, which will undoubtedly make it easier for taxpayers to implement the System and adapt their existing processes to the rules provided for structured invoices.

However, there is no chance that the new draft amendment to the VAT Act, will be enacted in Q1 2023, as the Ministry of Finance announced until recently. It should be expected to happen in Q2 2023 at the earliest, which would confirm the announcement of a one-year vacatio legis for the obligatory KSeF regulations made during the reconciliation conference.