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On 5 November 2024, a draft amendment to the VAT Act was published, significantly affecting how invoices are issued and settled using the National e-Invoicing System (KSeF). As Exorigo-Upos, a team of experienced experts in KSeF implementations and fiscal solutions, we have provided several comments to support entrepreneurs in the safe and lawful use of the system.
Our priority is to ensure that the new regulations are in line with the legislator’s intention and effective in implementing them in everyday business operations, without excessive risk and interpretation doubts. Below, we present the most critical areas that raise concerns for entrepreneurs.
1. Obligation to provide the Tax Identification Number by the buyer (Article 106e(1)(25) and Article 106ba)
According to the draft, if the buyer, a taxpayer or a legal person, uses the NIP number as part of a VAT transaction, they must provide it. A B2C invoice can be issued in the KSeF, but it will not allow VAT settlement from the buyer’s perspective. This means the responsibility is transferred to the buyer, as the seller does not have the tools to verify the buyer’s status.
Otherwise, the invoice may be treated as B2C, which eliminates the possibility of its settlement of VAT by the buyer.
Importance for taxpayers:
- Reduced risk of incorrect invoicing procedure,
- Avoiding a penalty for the seller for not using the KSeF,
- No responsibility on the part of the seller for identifying the buyer’s status.
We hope the act’s explanations will clarify the details to avoid doubts about whether the invoice is treated as B2C or B2B. We expect that the legislator will expressly exclude the issuer’s liability in cases where it acted based on data provided by the purchaser.
2. Transactions with foreign entities and the inability to fully verify them
The draft amendment does not provide for practical tools to check whether a foreign contractor has its registered office or fixed place of business in Poland. This may lead to incorrect application of the KSeF and related sanctions.
Importance for taxpayers:
- Inability to fully verify the status of a foreign buyer;
- The risk of invoicing in the wrong way;
- Uncertainty about compliance with regulations and the need to create additional individual arrangements with contractors.
We propose, for m.in., the introduction of the possibility of agreeing on the form of an invoice with foreign entities and the creation of a system of certificates of having a registered office or fixed place of business in Poland.
3. Lack of NIP for some Polish taxpayers – e.g. in the case of unregistered activity, private rental, flat-rate farmers
In its current wording, the draft does not specify how to proceed with transactions with entities without an NIP number (e.g., natural persons conducting unregistered activity, private rental, flat-rate farmers). The invoice issuer does not have the tools to unambiguously identify these buyers or determine whether the KSeF should cover the invoice.
Importance for taxpayers:
- Increased risk of errors and potential sanctions,
- Lack of guidelines from the Ministry of Finance,
- The need to independently recognise the purchaser’s status leads to legal uncertainty.
The Ministry of Finance should ensure unambiguous and straightforward verification of the availability of NIP or other forms of identification for taxpayers who do not have NIP.
4. Personal data protection (GDPR) in KSeF
The KSeF system collects personal data and, in some industries, sensitive data (e.g., medical data). Issuing an e-invoice in the KSeF does not require obtaining separate consent from the consumer to process personal data. Still, the draft lacks provisions addressing citizens’ concerns about excessive interference with privacy.
Importance for taxpayers:
- Uncertainty as to the legality of data transfer to the KSeF,
- A lack of a clear separation of the roles of the data administrator between the Ministry of Finance and the issuer of the invoice,
- Lack of DPIA (Data Processing Impact Assessment) increases the risk of GDPR violations, especially in industries that process sensitive data.
We postulate the need to supplement the draft with provisions on data processing by the GDPR.
Applications
Our comments respond to the real needs and concerns of the business community and tax advisors.
The bill, in its current form, creates:
- the risk of incorrect invoicing due to the lack of verification tools,
- uncertainty about the status of buyers, especially foreign ones,
- threat of violation of personal data protection regulations.
We aim to support entrepreneurs in the safe and legal implementation of the KSeF.
The Exorigo-Upos team monitors the legislative process on an ongoing basis. Soon, we will share more analyses and practical tips on implementing e-invoicing.
Do you have any questions? Contact our expert, Michał.Sosnowski@exorigo-upos.pl, and we will help you prepare for the upcoming changes.
