Obligation of using structured invoices (KSeF): revolutionary changes are getting closer

On 1 December 2022, the Ministry of Finance published a draft act on mandatory use of structured invoices and the National e-Invoicing System (KSeF). The proposed changes (with a few exceptions, discussed later here) are expected to take effect from 1 January 2024.

Who will be obliged to issue structured invoices and under what circumstances?

The obligation of using structured invoices is going to apply to taxpayers with a seat or fixed establishment in Poland, who, in connection with their business activity, are required to issue VAT invoices in accordance with Polish regulations.

What it means is that both Polish taxpayers and foreign taxpayers with a fixed establishment in Poland will be obliged to issue structured invoices.

However, the obligation to issue structured invoices shall not apply to:

• taxpayers who apply special procedures referred to in Section XII, Chapters 7, 7a and 9 of the VAT Act (including non-EU procedure for certain services, the special procedure for the provision of international occasional road passenger transport services and the special procedure for distance sales of imported goods);
• invoices issued during a failure of the KSeF or when KSeF cannot be used in emergency situations. Note: In such situations, the taxpayer shall be obliged to proceed as specified in the draft act;
• cases specified in a regulation by the Minister responsible for public finance.

Optionally, structured invoices can be issued by:

• taxpayers who do not have a seat or fixed establishment in Poland (excluding taxpayers applying special procedures);
• taxpayers issuing VAT RR invoices confirming the purchase of agricultural products and services from farmers taxed with flat-rate.

Structured invoices will document the supply of goods and services to businesses (B2B), public authorities (B2G) and consumers (B2C). 

Will there be any fines for taxpayers who fail to comply with structured invoicing obligations?

Under the draft act, the head of the tax office may issue a decision imposing a financial penalty if the taxpayer:

• has failed to issue an invoice using KSeF (which will be deemed as a failure to issue an invoice);
• during a failure of KSeF, has issued an invoice in electronic format that is not in line with the template provided;
• has failed to send to KSeF invoices issued during a system failure by the specified deadline.

The fine shall amount:

• up to 100% of the amount of tax shown on the invoice;
• up to 18.7% of the total amount due as shown on this invoice (for an invoice where no tax is shown.

At the same time, it has been specified that a minimum fine shall be no less than 1,000 PLN (in the event of a failure to issue a structured invoice or a failure to issue an invoice in line with the template provided) and no less than PLN 500 (in the event of a failure to send a structured invoice to KSeF by the predefined deadline).

The regulations on fines will enter into force on 1 July 2024.

What simplified procedures will be in place for structured invoicing?

1. In order to reduce the taxable amount and the output tax, taxpayers will not be required to have documentation confirming that they have agreed the conditions for the reduction of the taxable amount with the purchaser of goods or services and that these conditions have been met.
2. The purchaser will be obliged to adjust the input tax for the period in which they received the corrective structured invoice.
3. The purchaser will have the option of offering the seller a corrective invoice relating to the elements of the original invoice (excluding the VAT number): an equivalent of the adjustment note now in use.
4. Where a taxpayer issues two or more invoices to the same recipient, these documents shall be assigned an aggregate ID.
5. Taxpayers issuing structured invoices will no longer be required to submit JPK_FA and JPK_FA_RR to tax authorities.

What to look out for when implementing structured invoicing?

1. Any proposed corrective invoice will have a separate system number, different from the KSeF number.
2. The obligation to issue adjustment invoices in KSeF to invoices originally issued outside this system.
3. Any adjustment structured invoice should include a number permitting to identify the invoice to which the adjustment invoice relates in KSeF.
4. It is important that you agree how structured invoices shall be delivered to recipients in the event when:
    
   • the place of service provision is either a Member State other than Poland or a third country,
   • a structured invoice documents the export of goods or the intra-Community supply of goods;
   • the recipient of the invoice is an entity that does not have its seat or fixed establishment in Poland;
   • the invoice recipient is not obliged to use the National e-Invoicing System.
5. In the event of a system failure, the taxpayer shall issue invoices in electronic format (according with the template provided) and send them to the recipient in a manner agreed with them. The method of marking these invoices shall be specified in a regulation. In addition, the taxpayer shall be required to send these invoices to KSeF within 7 days of the end of the failure.
6. KSeF and PEF (i.e. E-Invoicing Platform with e-invoices used in public procurement) are going to be integrated.

What other changes are introduced by the KSeF amendment?

1. The 60-day deadline for a VAT refund has been replaced with a 40-day refund deadline.
2. There is no longer the obligation to issue an advance invoice where the taxpayer receives all or part of the payment for the activity in the same month in which they performed this activity.
3. Invoices issued with cash registers shall no longer be recognised as invoices in the meaning of the VAT Act (starting from January 2025).
4. An active VAT taxpayer making payments for structured invoices to another active VAT taxpayer via a bank account or an account in a cooperative savings and credit union shall be required to provide the ID of structured invoices in KSeF (or the aggregate ID of invoices generated in KSeF). This shall be applicable to payments made from 1 July 2024.
5. The recipient making payments with the split payment mechanism can make a payment for a couple of selected structured invoices provided that they provide their aggregate ID generated by KSeF.
6. The list of taxpayers (known as the White List) shall include the information on whether a given entity is obliged to issue structured invoices or not.

Should you have any questions or wish to discuss the topic, please contact our expert, Monika SMAGA:

e-mail: ekspert@rsmpoland.pl
tel. +48 61 8515 766
fax +48 61 8515 786