On December 1, the Government Legislation Center published a draft of legislation concerning the obligatory e-invoicing under the KSeF. The draft significantly changes the currently applicable provisions of the VAT Act, applicable to the period of optional e-invoicing, and clarifies the information from the Council Implementing Decision (EU) 2022/1003, allowing the introduction of mandatory e-invoicing in Poland.
Key informations and changes
Date of introduction
KSeF is to be applied on a mandatory basis from January 1, 2024. Unlike in case of SAFT where such change was implemented in stages (different periods of introducing SAFT for different sizes of entities), it was decided not to phase this date.
Entity scope
- In addition to Polish taxpayers based in Poland, e-invoices are also to be mandatorily issued by foreign entities with a fixed establishment in the territory of the country.
- Optionally KSeF can be used by other foreign taxpayers who do not have a seat of business or a fixed establishment in the territory of Poland. The KSeF will also be available to taxpayers exempt from VAT and flat-rate farmers.
- Some entities, in particular taxpayers registered for the VAT OSS/IOSS procedure in another Member State and issuing invoices under the special procedures provided for in the VAT Act (including in the scope of the provision of international occasional road passenger transport services and the special procedure of selling imported goods on distance), will remain outside the obligation for KSeF
Subject scope
- The draft act confirms the wide scope of mandatory e-invoicing by KSeF - basically it is to apply to all transactions currently documented with an invoice, including invoices issued on consumer demand (B2C).
- The assumption of the universality of invoicing in KSeF resulted in the inclusion in this scope of electronic invoices in public procurement, issued from 2019 on the Electronic Invoicing Platform. Both systems are to be integrated in such a way that e-invoices issued in PEF are to obtain a KSeF number and then be made available in PEF.
- The possibility of optionally issuing invoices documenting the purchase of agricultural products and agricultural services from flat-rate farmers, i.e. VAT RR invoices and corrections for VAT RR invoices, was also introduced. A separate XML schema has also been designed to handle them.
- Contrary to the current position of the Ministry of Finance, corrective invoices to original invoices issued outside the KSeF are also to be handled in this system. Dedicated fields have been provided for this purpose in the new version of the XML schema.
The end of invoices from cash registers and receipts with NIP as invoices: from the moment of introducing the mandatory KSeF, a receipt with a NIP tax identification number up to PLN 450 will not be considered a fully-fledged e-invoice. In addition, a year later, from January 2025, the Ministry plans to resign from the possibility of issuing invoices at cash registers.
Safe mode
The draft act regulates in detail the procedure to be followed in the event of a KSEF failure. Information about a system failure is to be properly communicated - in the Public Information Bulletin of the Ministry and by means of an independent interface. During the failure period, taxpayers are to issue e-invoices in accordance with the scheme, but without sending them to the KSeF and forward them to recipients. The date of issuing such e-invoices will be the date provided in field P_1. After the end of the failure, they will have 7 days to send invoices issued in this way to KSeF, otherwise they will be subject to a fine (from July 2024). In addition, it is possible to issue e-invoices outside the KSeF in the event of a crisis situation.
Financial penalties
Failing to comply with obligations related to e-invoicing is a subject to number of financial sanctions. By decision of the head of the tax office, the taxpayer will be able to be fined up to 100% of the amount of VAT shown on the invoice, and for invoices without the tax shown - up to 18.7% of the amount due on the invoice. Additional fines apply to situations where the taxpayer failed to issue an e-invoice or issued an invoice not in accordance with the template provided (not less than PLN 1,000) or failed to send the invoice to KSeF on time (not less than PLN 500).
Verification code
The additional marking in the form of a QR code, which is to facilitate quick verification of the e-invoice visualization in terms of compliance with the data stored in KSeF. Marking with the code should be visualized both in the application provided by the Ministry of Finance and in commercial tools, and the verification itself will be available to all mobile phone owners, including consumers.
Proposition of correction of invoice
The new functionality, corresponding to the currently functioning corrective note. The seller will be able to receive a proposal to correct selected elements of the original invoice (except for the NIP number). It will not have any legal effects until it is accepted by the seller - then it receives a KSeF number and becomes a full-fledged corrective e-invoice.
Payments and Aggregate ID
The Act of March 6, 2018, Entrepreneurs' Law is amended by adding a regulation that an entrepreneur who is an active VAT taxpayer making payments for e-invoices to an active VAT taxpayer via a bank account or an account at a cooperative savings and credit union is obliged to provide the number identifying these invoices in the National e-Invoices System or the collective identifier of invoices generated in KSeF. The collective identifier will be assigned to invoices (at least two) issued to the same recipient. This obligation will apply to payments made from July 1, 2024.
Exemptions from the application of KSeF for additional entities: The Minister of Finance will be able, by way of a regulation, to specify additional cases (other than those already mentioned in the regulations) in which it will be possible to issue invoices outside the KSEF by entities that are generally obliged to do so. In addition, such a regulation would also indicate the manner in which taxpayers would then make invoices available to buyers.
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The proposed amendments to the act will now be subject to public consultations, as announced by the Ministry, the act is to enter into force in the second quarter of 2023.
In addition, another version of the FA(2) e-invoicing scheme was published, differing in many respects from the previous one. We will inform you about changes in its scope in a separate communication.
The publication of the draft regulations and the new version of the scheme is an important step in preparations for the introduction of mandatory e-invoicing by KSeF. If you need support in this area, both substantive and implementation, our experts are at your disposal - please contact us.
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