Regulatory updates - Poland

The MoF (Ministry of Finance) is starting public consultations on two implementing drafts of the KSeF obligation from 1 July 2024.

The first draft is the technical regulation for KSeF, which implies the following:

• Expanded anonymous access to invoices is issued
  • in contingency mode (in the event of systems failure and unavailability), and
  • for VAT RR invoices and VAT RR corrective invoices.
• QR code generated both in KSeF and in contingency mode;
  • The MoF will publish the specifications, including QR technical requirements, in the coming days.
• KSeF authorization and authentication
  • Authorization expanded to include taxpayers indicated by a flat-rate farmer;
  • Introduce additional security to authorized tokens. Tokens generated before 1 July 2024 will only be valid till 31 December 2024.

The second draft is the amendment on issuing invoices:

• As of 1 January 2025, VAT-exempt taxpayers need to include the NIP of the buyer and the supplier on the KSeF invoices;
• Invoices for continuous services (e.g., supply of utilities), an invoice may not contain:
  • measurement and quantity of goods delivered, or scope of services provided,
  • unit price without tax (net unit price).

Comments on both drafts can be submitted by 18 December 2023 to [email protected]

On 24 October, the Polish government released a draft on the detailed scope of data contained in tax returns and records in the field of tax on goods and services (regulation on JPK_VAT submission component). 

The main changes from the draft include: 

• Shortening of the VAT refund deadlines by 20 days, i.e., from 60 to 40 days; 

• Requirement to include the KSeF number in the JPK file if such a number has been assigned; 
• Special marking of invoices issued during a failure or unavailability of KSeF; 

• • “OFF”: The invoice has not been assigned a KSeF number and has not been sent to this system based on specific reasons; 
  • “BFK”: For invoices not mandatory to be issued in the National e-Invoice System. 

The Ministry of Finance assumes that the changes to JPK_VAT file introduced by this regulation will be applied in the first operational stage of the KSeF obligation, i.e., 1 July 2024. 

The amendment is currently open for public consultation until 14 November 2023.  

The Senate vetoed the bill on amending the VAT Act on 13 July due to discrepancies found to be unconstitutional. However, on 25 July, the Sejm rejected the Senate's position with majority votes and submitted it to the President for final approval.

On 4 August 2023, the President of the Republic of Poland signed the Act amending tax on goods and services, including mandatory use of e-invoices. All businesses established in Poland, including SMEs, must adopt the KSeF system.

Along with the amended Act, taxpayers will have to use the KSeF system to issue and receive e-invoices as of July 2024. For VAT-exempt businesses, the system will become mandatory from January 2025.

On 29 June 2023, The Polish Ministry of Finance announced the publication of an updated version of the FA(2) logical structure. Expectations are now that the FA(2) structure will become binding by 1 September 2023, fully replacing the FA(1) structure.

Between July and August of 2023, parties will have access to both the FA(1) and FA(2) logical structures in KSeF’s test environment. The ministry believes this will assist in making the transition, once electronic invoicing becomes obligatory in July 2024, more seamless.

 Access to both structures can be found on the ePAUP platform in the Central Repository of Templates of Electronic Documents (CRWDE).

The Senate, more specifically the Senate Budget and Finance Committee, rejected the bill that, amongst other things, would make the KSeF system and issuance of electronic invoices for B2G and B2B transactions mandatory. The reasons stated are that there are discrepancies in the bill that were found to be unconstitutional. While these aspects that were collectively deemed unconstitutional do not directly relate to KSeF itself, the bill in its entirety was rejected and inadvertently encompasses the system.

The bill will now return to the Sejm, the lower house of the Polish parliament, and could still be passed with majority votes if the Sejm reject the Senate’s veto. In this case, the legislation would be passed under the provisions adopted by the Sejm. This is considered probable as the KSeF system is one of Poland’s major tax programs of the governing party. In any event, we at Pagero believe that the current situation will not have any major impact r on the existing timelines or details around the introduction of mandatory e-invoicing and the use of KSeF.

The Sejm (Parliament) passed the amendment to the VAT Act on the obligation of the National e-Invoice System (KSeF) on June 16, 2023, according to the announcement. Among the changes we’ve mentioned previously, taxpayers will be obligated to issue and receive e-invoices in the mandatory infrastructure from July next year.

Polish VAT payers can issue e-invoices in KSeF from January 2022 voluntarily. Following the adoption by the Parliament, businesses subject to VAT, including foreign VAT registers established in Poland, are required to use KSeF to exchange electronic invoices.

The Polish Council of Ministers adopted the draft early this month, aiming to accelerate digitization, and now the amendment is in the Sejm waiting for approval.

Polish businesses have been able to voluntarily issue e-invoices via KSeF since 2022. According to the draft amendment adopted by the government, KSeF is to become mandatory from 1 July 2024.

Based on the draft and public consultation, the Polish government released a new version of the mandatory format FA(2) on 23 May, and the implementation schedules are as follows

• June 2023: publish the logical structure on ePUAP,
• July 2023:  launch a test environment adapted to the new FA (2) and together with the relevant documentation,
• September 2023: the production environment be ready.

As per the announcement from the Polish government, the FA(2) logical structure will replace the current FA(1) from 1 September 2023, and taxpayers will have time to adopt the new version format during the voluntary phase and get prepared before mandatory phase, i.e. 1 July 2024.

A new version of the draft amendment was announced by the Polish government on 15 March 2023. Most information on the draft reflects the proposal from the Ministry of Finance in February, including new timelines for the mandate and removing B2C invoices from the KSeF obligation, as we previously mentioned.

Furthermore, the draft takes into account comments from public consultations.

The main changes since the previous draft are as follows:

• Timelines:
  • Postponement of the mandate to 1 July 2024;
  • Extension for the KSeF obligation of VAT-exempt businesses to January 2025;
  • Invoices from cash registers can keep the current form until 31 December 2024;
  • A fiscal receipt with a NIP number will be considered a simplified invoice until 31 December 2024;
  • Penalties will enter into force from 1 January 2025.
• Out of the KSeF scope:
  • B2C invoices;
  • Tickets, including receipts on toll motorways;
  • Invoices issued under the OSS and IOSS.
• The currency exchange rate can be determined on the day preceding the date indicated in field P_1
• Able to issue invoices offline and deliver them to the KSeF on the next working day in case of a failure to submit the invoice to the KSeF
• Possible to issue corrective invoices offline in the period of failure
• Elimination of Corrective Notes
• Withdraw Corrective Invoice Proposals

The SKRM (Stały Komitet Rady Ministrów, Standing Committee of the Council of Ministers) has already given a positive opinion on the draft.

The KSeF system production version launched in 2022 and was planned to become mandatory for all taxpayers in January 2024. However, it may now be delayed six months to July 2024, according to the announcement from the Ministry of Finance.

As mentioned in our previous publication, a draft outlining the scope of the mandate was released in December. Currently, this draft is facing amendments.

Along with the postponement, a few modifications have been raised, such as:

• Excluding B2C invoices from the KSeF mandatory scope;
• Deferring the obligation of VAT-exempt businesses to issue structured invoices to January 2025;
• Invoice from cash registers and simplified invoices can keep their current solution until 31 December 2024;
• Possibility to issue invoices offline outside the KSeF and deliver the invoice to the KSeF the next day;
• Penalties will take effect from 1 January 2025.

The Polish government is currently finalizing the legislative framework. They plan to introduce the statutory provisions by Q1 and obtain approval by July this year.

On 1 December, the Polish Ministry of Finance announced a public consultation on the draft VAT amendment introducing e-invoicing obligation.

According to the amendment, all taxpayers established in Poland (i.e., that have a place of business or a fixed place of business within the territory of the country) need to issue e-invoices in the National e-Invoice System (KSeF). Activities subject to VAT in Poland, including B2B, B2G, and B2C, are in the scope of the mandate.

Furthermore, taxpayers will be able to issue VAT RR invoices voluntarily via KSeF in the updated version.

In addition, VAT payers might face non-compliance penalties of up to 100% of the tax amount on an invoice (or up to 18.7% of the total amount in case of an invoice without tax).

To facilitate e-invoicing in Poland, the Polish government has provided a free KSeF Taxpayer Application and integrated the e-mikrofirma application with KSeF. In addition, the KSeF mobile application will be launched soon.

Along with the amendment, the e-invoice draft logical structures and FA_RR can be found on the MoF website.

The amendment is now open for public consultation. Taxpayers can send comments and opinions to [email protected] by 23 December 2022. Upon approval, the act will enter into force from 1 January 2024, with some provisions about penalties starting on 1 July 2024.