Obligatory KSeF. Significant changes in the new bill
The draft amendment to the VAT law published on March 15, 2023 confirms that the deadline for the introduction of obligatory e-invoicing will be postponed to July 1, 2024. It was also decided to take into account some of the demands of, among others, entrepreneurs, accountants and the IT sector, including the application of sanctions, as well as the possibility of issuing invoices before making a supply or providing a service.
It was known that the final shape of the regulations for the obligatory use of the National e-Invoicing System [hereinafter: KSeF] would differ from those resulting from the draft amendment to the VAT Act of November 30, 2022, at least from the moment the Ministry of Finance published a communication in early February listing changes to the assumptions of the KSeF operation. In turn, another communication, published by the Finance Ministry on February 16 after the so-called “reconciliation conference,” indicated that the target model of the KSeF was already crystallizing and was to take into account the demands of businesses, accountants and auditors, the IT sector and the infrastructure ministry made in the public consultation.
The most important of the signaled changes is the postponement of the entry into force of obligatory e-invoicing – from January 1, 2024 to July 1, 2024, and for VAT-exempt taxpayers to January 1, 2025. Adjustments were also announced in several other areas that are important from the perspective of taxpayers. The proposed solutions outlined after the aforementioned reconciliation conference were also included in a new draft law dated February 22, 2023, which was published on March 15, 2023.
Issuing an invoice before the delivery of goods and services
The most important and painful change for many taxpayers, including those in the leasing and automotive industries, which resulted from a November draft amendment to the VAT law, provided for the almost complete abolition of the possibility of issuing invoices before the delivery of goods (or the performance of services), as well as before receiving an advance payment.
In the end, after consultations, the legislator withdrew from this controversial idea, which means that the current rules, allowing invoices to be issued up to 60 days before the delivery of goods (provision of services), will continue to apply.
Issuance of an invoice in case of a KSeF failure on the taxpayer’s side
The original draft of the amendments did not provide solutions that would address a KSeF failure on the taxpayer’s side, but only solutions for dealing with a failure on the System administrator’s side.
The new bill stipulates that in the event of a failure on the taxpayer’s side, the taxpayer will have the option to issue invoices offline outside KSeF in electronic form – according to the template – and transmit it to the recipient. However, the issuer of the document will be obliged to deliver such an invoice to KSeF on the next business day after issuing it offline. This solution is definitely advantageous, but there may still be doubts about what to do in a situation where a breakdown at the taxpayer’s site lasts longer than one day and the taxpayer is unable to send the invoice to KSeF by the deadline. It seems that a prolonged failure will be treated as a taxpayer’s failure to meet the statutory deadline, risking a fine.
The Finance Ministry has backtracked on 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.
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.
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.