Can the issuer choose the invoice issue date in the National e-Invoicing System (KSeF)?

Although several months have passed since the mandatory implementation of the Polish National e-Invoicing System (KSeF), taxpayers continue to face uncertainties regarding the new invoicing rules. This is reflected in the substantial number of individual tax rulings concerning KSeF, in which the Director of the National Revenue Information Service (Director of KIS) has taken unexpected positions. In a recently issued individual ruling, the tax authority addressed invoices deemed to have been issued under the so-called “offline24” mode.

Deadline for issuing the invoice had expired

The applicant described a scenario in which it issues invoices documenting transactions for which the tax point arises upon issuance of the invoice. In such cases, taxpayers are obliged to issue the invoice no later than by the payment due date.

The applicant obtained information confirming that the customer was a VAT taxpayer on the basis of a declaration received only after the service had already been rendered. The purchaser’s status is of key importance for the seller’s documentary obligations – where the customer acquires the service as a VAT taxpayer, the seller is required to issue the invoice via KSeF.

Due to the nature of the applicant’s business operations, situations occurred in practice where, following performance of the service and after expiry of the payment deadline, the customer informed the applicant that the service had been acquired by a VAT taxpayer. Consequently, the applicant became obliged to issue an invoice, even though the statutory deadline for its issuance had already expired.

How is the invoice issue date determined in KSeF?

As a general rule, following the implementation of KSeF, the issue date of a structured invoice is the date on which it is transmitted to KSeF. Importantly, however, this rule applies only where the date indicated in field P_1 corresponds to the date on which the invoice is transmitted to the system.

If the date of transmission to KSeF is later than the date indicated in field P_1, the invoice will be treated as having been issued in the so-called “offline24” mode. In such circumstances, the physical transmission date to KSeF is irrelevant for determining the invoice issue date – the issue date is deemed to be the date specified in field P_1.

Can the issuer freely determine the invoice issue date?

In light of the above regulations, and in order to comply with the statutory deadline for issuing invoices, the applicant proposed that, when issuing structured invoices, it would indicate in field P_1 a date no later than the payment due date. Such invoices would subsequently be transmitted to KSeF without undue delay and no later than on the next business day following the invoice generation date indicated in the “DataWytworzeniaFa” field.

Under the invoicing process proposed by the applicant, three separate dates would therefore appear:

• the date indicated in field P_1, i.e. the invoice issue date referred to in Article 106e(1)(1) of the Polish VAT Act – the applicant intended to indicate either the payment due date or an earlier date;
• the date indicated in the DataWytworzeniaFa field, i.e. the date on which the invoice file was generated, which is not regulated under the Polish VAT Act – the applicant intended to send the invoice file no later than one business day following the date indicated in this field;
• the KSeF date, i.e. the date on which the invoice was send to KSeF – assigned automatically by the system.

In practice, this could result in the invoice being sent to KSeF later than on the next business day following the date indicated in field P_1, but no later than on the next business day following the date of creation of the document indicated in the DataWytworzeniaFa field.

The consequence of such an approach would, naturally, be that the date indicated in field P_1 would be recognised as the invoice issue date. Nevertheless, doubts may arise as to whether transmitting the invoice to KSeF later than on the next business day following the date indicated in field P_1 could expose the applicant to any negative consequences, given that the invoice would be treated as having been issued in offline24 mode.

Accordingly, the applicant asked whether, by issuing invoices in this manner, “the Company would comply with the statutory deadline for transmitting the XML file to KSeF and would not breach the requirements for structured invoicing.”

Deadline for transmission to KSeF of invoices deemed issued in offline24 mode

The applicant argued that Article 106nda(16) of the Polish VAT Act does not refer to the corresponding application of the provisions of Article 106nda(2) of the Polish VAT Act. On this basis, the applicant argued that invoices issued pursuant to Article 106nda(16) of the VAT Act (i.e. invoices deemed issued in offline24 mode) are not subject to the obligation to transmit them to KSeF no later than on the next business day following their issue date.

Although the Director of KIS did not address this argument directly, the authority ultimately confirmed the applicant’s position as correct and did not challenge the proposed approach in the individual ruling issued. According to the authority, the invoicing method described in the application, including the timing for transmission of the XML file to KSeF, complies with the principles set out in the provisions of the Polish VAT Act. Furthermore, the Director of KIS expressly stated that, by issuing and transmitting invoices to KSeF in the described manner, the applicant would comply with the statutory deadline for transmitting the XML file to KSeF.

Selection of invoice issue dates under the offline24 procedure

The position adopted by the Director of KIS may prove highly significant for invoicing practices under the Polish VAT regime.

By accepting the applicant’s position, the Director of KIS has, in effect, permitted the selection of any retrospective date. If the invoicing method described “does not breach the requirements for structured invoicing” and the applicant “complies with the statutory deadline for transmitting the XML file to KSeF”, it is difficult to identify arguments that would restrict taxpayers’ ability to independently determine the invoice issue date.

Importantly, the authority did not refer to the specific circumstances highlighted by the applicant. Consequently, the ruling cannot be regarded as an exceptional case justified by the particular nature of the applicant’s business activities.

It should nevertheless be emphasised that the legal protection associated with an individual tax ruling, as provided for under the Polish Tax Ordinance, applies exclusively to the applicant concerned. Moreover, the position adopted by the Director of KIS constitutes the first ruling of this kind. Accordingly, before implementing changes to invoicing procedures, it may be advisable to await further individual rulings through which a consistent interpretative line may emerge. Nevertheless, the position adopted by the Director of KIS may represent the beginning of a significant transformation in invoicing practice.