KSeF – the latest comments after public consultations on the draft amendment to the VAT Act related to the National e-Invoice System

We met yesterday (January 31, 2023) with the Ministry of Finance, which shared its thoughts from the social consultations regarding the draft amendment to the VAT Act in the context of introducing the obligation to use the National e-Invoice System. Below is a summary of the meeting. This is yet to be the official position of the Ministry of Finance. Still, it should be expected that the information provided will be announced as an official decision in February or March at the latest.

The most important change is postponing the obligation to use KSeF by half a year, i.e., from July 1, 2024. Consequently, other planned changes are delayed by six months (including treating receipts with NIP tax identification numbers up to PLN 450 as a simplified invoice).

The Ministry of Finance intends to continue the Big Bang implementation – at the same time, the obligation will cover all entities. Only taxpayers subjectively exempt from VAT and providing services/supplies exempt from VAT are to apply the KSeF on a mandatory basis from January 1, 2025.

B2C consumer invoices will either be excluded from KSeF or optional (considering the comments, it is rather expected that it will not be possible to send B2C invoices to KSeF). Similarly, tickets (train, plane) and motorway tolls are to be excluded from KSeF.

Fiscal invoices (i.e., VAT invoices being a fiscal document issued at a cash register, e.g., a frequent cause of an invoice at petrol stations) will be given one year after the entry into force of the mandatory KSeF. Still, they will not have to be submitted to the KSeF. After July 1, 2025, the taxpayer will either have to issue invoices outside the cash register or issue a receipt with the NIP (for any amount) and a VAT invoice (in both cases, with the obligation to send it to the National Court Register).

It is proposed to moderate the penalty in proportion to the offense – here, a precise mechanism has yet to be developed. Still, there will be no minimum penalty threshold (PLN 1,000 was proposed) for failure to issue an invoice to the KSeF.

In addition to the KSeF emergency mode, an analogous failure mode on the part of the taxpayer will be possible – so that an invoice can be issued outside the KSeF under pain of being forwarded to the KSeF within 24 hours, with the date of issue consistent with field P_1.

The so-called model clearing is the basic approach, i.e., the official date of issue in KSeF is the moment of sending the invoice to KSeF. The only exception is safe mode. The possibility of using the date from the P_1 field is considered to calculate the exchange rate.

The discussed corrective invoice proposal process initiated in KSeF by the buyer may still need to be implemented.

There is a proposal for self-billing abroad.

An authorization token can initiate the shipment of the so-called batch.

There were voices that entities with a permanent place of business in Poland, due to the difficulties in defining the criterion, would be excluded from applying the KSeF. Still, the position of the Ministry of Finance on this issue will remain the same.

Schedule of activities:

• February/March 2023 – publication of the final version of the draft act and the KSeF API specification.
• July 2023 – completion of the legislative path and announcement in the Journal of Laws (deadline due to the lack of sessions of the Sejm due to parliamentary elections).
• The second half of 2023 – intensive information campaign on e-invoices.
• July 2024 – the start of mandatory application for the KSEF.

The diagram below illustrates the planned changes in the use of particular types of documents: