First of all, it is important to recall that the original draft of the KSeF Act assumed that entrepreneurs would be obliged to issue invoices in KSeF also for (B2C) consumers. Eventually, the draft was amended and, under the act passed by the Sejm, structured invoices should only be issued to businesses. Foreign taxpayers are also exempt from the obligation to use KSeF.
However, the amendment to the KSeF Act introduced an exception for companies with a fixed establishment for VAT purposes within the territory of Poland. We would like to point out that a permanent place of business (VAT fixed establishment) is not the same as the place of establishment or registration. In order to create a fixed establishment, it is necessary to fulfil certain prerequisites concerning the actual activity. If these prerequisites are not met and the entrepreneur does not have a fixed establishment within the territory of Poland, he will not be obliged to issue invoices via KSeF.
In other cases, the taxpayer must provide the purchaser with access to the e-invoice in the System. If the purchaser uses KSeF, the purchaser will, in principle, receive access to the invoice directly through the System. In cases in which the purchaser is not obliged to use e-invoices, the issuer will be obliged to provide such purchaser with access to the e-invoice in another way, most often by marking the invoice with a QR code.
The taxpayer issuing invoices to persons not using KSeF is obliged to mark the structured invoice with the appropriate code. The code is to allow ongoing access to the e-invoice in the System.
Apart from the cases described above in which the purchaser is not required to use KSeF, the e-invoice shall be marked with a code each time it is used outside KSeF. The storage of an e-invoice in other than structured form (e.g., hard copy or PDF) will, in principle, require it to be marked with a code providing access to it in the System. In practice, invoices will be marked with QR codes which, when scanned, should take the purchaser to the relevant page of the System.
Companies issuing e-invoices must ensure that these documents are available on an ongoing basis to all purchasers. As a general rule, active VAT taxpayers will be obliged to issue and receive e-invoices in the System. When invoicing an active VAT taxpayer, the e-invoice will therefore be sent in KSeF.
The situation is different for a VAT-exempt purchaser. For a transitional period until 31 December 2024, the compulsory KSeF will not apply to taxpayers benefiting from entity or subject matter VAT exemption. VAT-exempt taxpayers therefore do not have to issue invoices in KSeF or receive them. At the same time, as we mentioned, the issuing of an invoice to a person who is not obliged to use KSeF, as a rule, requires the e-invoice to be marked with a QR code. Consequently, the obligation to mark documents also applies to e-invoices issued during the transitional period to VAT-exempt purchasers.
The current wording of the regulations will thus require taxpayers to verify the status of the purchaser before issuing an invoice. If the VAT-exempt purchaser, agrees to send an e-invoice via KSeF, it will not be mandatory to provide the e-invoice identification code. If, on the other hand, the supplier does not verify the purchaser's status and/or does not confirm another way of receiving the e-invoice, it will become necessary to provide such a purchaser with access to the System by providing the QR code.
Invoice issuers will therefore be forced to check whether purchasers are active taxpayers and, if they are entitled to an exemption, to confirm whether an e-invoice access code is necessary. Currently, verification of the purchaser's status is only possible via the VAT white list. Also, in the current version of KSeF, it is not possible to automatically check the status of the purchaser. Thus, conducting such verification will involve additional work on the part of the invoice issuer.
How to use the National e-Invoicing System (KSeF)? How to prepare for the regulatory changes? We invite you to watch the recording of our webinar – watch webinar recording KseF in Poland – how to prepare for the implementation?