Use of the National e-Invoice System – analysis of the proposed regulations

Following consultations, the Ministry of Finance has decided to postpone the effective date of the mandatory use of the National e-Invoice System by six months. Accordingly, the use of the National e-Invoice System (Polish: Krajowy System e-Faktur, KSeF) will become mandatory from 1 July 2024, otherwise documents issued by other means will not be recognised as VAT invoices.

Structured invoices will be issued according to a template based on a logical structure, known as the .xsd schema, established by the Ministry of Finance. Invoices issued in this way will be stored and processed by the KSeF), which in turn will decide whether or not to accept the invoice – depending on the correctness of the information sent.

Ultimately, this will be the only possible form of documenting the activities carried out by VAT taxpayers with their registered office or permanent place of business in Poland. The Minister of Finance will be able to issue an executive regulation exempting certain taxpayers from the obligation to issue structured invoices.

In turn, the KSeF will remain optional for entities with their registered office or permanent place of business outside Poland. If a structured invoice is used outside the National e-Invoice System, the taxpayer will be obliged to mark the invoice in a way that enables the verification of the data contained therein. An executive regulation will be issued, setting out the way in which invoices are to be marked. In this regard, the Ministry of Finance plans to use QR codes, making it possible to verify the invoice in the KSeF.

In contrast, structured invoices will not be available to taxpayers using:

• the non-EU procedure for certain services (OSS);
• the special scheme for the supply of international occasional road passenger transport services; or
• the special scheme for distance selling of imported goods (IOSS).

Non-availability of the KSeF and crisis situations

The proposed provisions further provide for the following:

• failure of the KSeF – issuing invoices according to the .xsd schema and then sending them to the purchaser bypassing the system. The Ministry of Finance Public Information Bulletin will make an announcement regarding the failure, and, within seven days of the end date indicated in the announcement, the issuer will be required to send invoices issued outside the system to have identification numbers assigned.
• the occurrence of an extraordinary crisis situation (e.g. resulting from sudden and unforeseeable events or an infrastructure failure) – invoices (including invoices and adjustment notes) can be issued as before, but only in the area affected by the crisis situation and only until the crisis situation has passed. It should be stressed that in this case there is no obligation to send invoices issued during this period afterwards.
• issuing structured invoices outside the National e-Invoice System – mandatory transmission to the buyer of an invoice issued outside KSeF in a situation where the place of supply of the service is outside Poland or the recipient of the invoice is not required to use the National e-Invoice System.

Penalties for non-compliance

A taxpayer who fails to issue a structured invoice where obliged to do so, or who issues an invoice that does not comply with regulations or deadlines that apply in the event of a KeSF failure, will be subject to a fine, the amount of which may be:

• up to 100% of the amount of tax shown on that invoice; or
• in the case of an invoice with no tax shown, up to 18.7 per cent of the total amount due, as shown on the invoice.

However, each time the fine will be no less than:

• PLN 1,000 in the event that an invoice is not issued or is issued wrongly during a KSeF failure; or
• PLN 500 in the event of failure to send an invoice issued during a KSeF failure to the system on time. This means, therefore, that fines can be particularly severe for taxpayers issuing a large number of invoices, even if they contain small amounts.

With this in mind, fines will be threatened not only for issuing an invoice in the wrong form, but for any failure to issue an invoice by the prescribed deadline.