The introduction of the National e-Invoice System (KSeF) raises many questions, doubts and ideas on how to avoid the new obligation. One of the most frequently repeated myths is the belief that issuing bills instead of invoices allows you to remain outside the system. — This is an incorrect assumption that may expose entrepreneurs to unnecessary legal risk, says Bogdan Zatorski, manager of business analyzes and legal requirements at Symfonia.
Another problem concerns privately rented properties. Until now, if the tenant was a company, the landlord issued the invoice. However, the tax office believes that in such cases an invoice must be issued, which entails certain consequences.
According to Janina Fornalik, tax advisor and partner at MDDP, the tax office has no grounds to require invoices from landlords.
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What is the difference between an invoice and a bill?
— The fundamental difference between a bill and an invoice results from the legal basis and the functions of both documents, explains Bogdan Zatorski.
An invoice is defined in the VAT Act and must contain precisely defined elements, among others details of the parties (seller and buyer), subject of the transaction, net/gross value and tax amount. — The invoice is used for tax settlements and documents the right of the buyer (who is a taxpayer) to deduct input tax, says Zatorski.
The invoice is a simplified proof of sale provided for in the Tax Ordinanceusually used in relations with non-taxpayer buyers.
Can a bill replace an invoice in KSeF?
Bogdan Zatorski argues that in the case of entrepreneurs the invoice will not replace a structured invoice, i.e. an invoice in KSeF.
— Pursuant to Art. 106ga of the VAT Act, the obligation to issue structured invoices applies to taxpayers. And as stated in Art. 15 of the VAT Act, a taxpayer is any natural or legal person independently conducting business activity within the meaning of VAT regulations. Importantly – Entities benefiting from the subjective exemption (so-called small taxpayers) also have the status of a taxpayer. – says Bogdan Zatorski.
The expert reminds that the VAT Act provides only few exceptions in which it is permissible to issue paper or electronic invoices outside the KSeF. This applies, among others, to: transactions for consumers (B2C), entities without a registered office or permanent place of business in Poland and specific services documented, e.g. with tickets acting as invoices (motorway journeys, railway tickets).
According to Bogdan Zatorski, it should be crucial for companies from the SME sector to implement tools that automate processes and guarantee compliance with regulations, including KSeF. The expert emphasizes that an attempt to “circumvent” the regulations by issuing bills instead of invoices does not change the nature of the taxable activity.
Janina Fornalik adds that taxpayers who have a registered business, i.e. a Tax Identification Number, e.g. a small car repair shop, a taxi driver, or a shop at a market, should issue invoices to KSeF (from April 1 or January 1, 2027, depending on whether the monthly sales documented in the invoices exceed or do not exceed PLN 10,000). This shouldn't be a big problem for companies.
Can real estate landlords issue bills instead of invoices?
The problem of bills also applies to privately rented properties when the tenant is an entrepreneur or company. Usually, these are people who do not have a registered business and do not have a Tax Identification Number.
The tax office is of the opinion that even if the lessor is a private person, not running a business, without a NIP (Tax Identification Number), under VAT he is a person running a business, so he is obliged to issue invoices to KSeF (from April 1 or January 1, 2027). We informed about the position of the tax office (Ministry of Finance and the Director of the National Tax Information) in the article: The new interpretation of the National Tax Chamber surprises landlords. It affects many taxpayers.
According to Janina Fornalik, The position of the Ministry of Finance and the Director of the National Tax Chamber regarding the obligation for taxpayers who are exempt from personal exemptions is to issue invoices unjustified and has no basis in the regulations. The expert points out that the tax office changed its approach because before KSeF there were interpretations allowing for documenting private lease with invoices. — Evidently, the change in position is caused by the introduction of KSeF and the intention to cover B2B transactions subject to the VAT Act, including those made by exempt taxpayers, with this system — says Janina Fornalik.
The expert points out that the position of the Ministry of Finance and the Director of the KIS requires exempt taxpayers (e.g. those renting real estate) to have a NIP, because without it it would not be technically possible to issue an invoice in the KSeF. – Except that the obligation to issue an invoice in KSeF exists only if the taxpayer is obliged to issue an invoice at all or issues such an invoice voluntarily. And in this respect, the regulations have not changed. This means that the tax office's position does not result from the provisions of the VAT Act – says Janina Fornalik.
The expert explains that with the entry into force of the mandatory KSeF the rules for issuing invoices have not changed referred to in Art. 106b of the VAT Act. Pursuant to Art. 106b section 2 of the Act a taxpayer using the subjective exemption (Article 113(1) and (9) of the Act) is not obliged to issue an invoice. This obligation will generally occur when the buyer requests an invoice, provided that he/she does so within three months (Article 106b(3)(2) of the Act). What's more, in the case of rental services, even at the buyer's request, there is no obligation to issue an invoicewhich results from Art. 106b section 3 point 1 letter and the Act.
— Therefore, I believe that if the parties (landlord and tenant) do not agree on documenting the lease in the form of an invoice, it is justified to issue any document in this situation – a bill, note, pro-forma invoice, and you can even not issue any document – then payments would be made on the basis of the contract itself. – says Janina Fornalik.
The tenant company, of course, usually needs some document to record the rental costs. — So far, the bills have been accepted and a change in the approach of the Ministry of Finance in this respect is not justified by the regulations. The invoice is issued at the buyer's request when separate regulations do not provide for the obligation to issue an invoice (Article 87 of the Tax Ordinance). This situation occurs in the case of renting to a company by a taxpayer exempt from personal liability because, according to the Act, he is not obliged to issue an invoice – says Janina Fornalik.
What if the landlord does not comply with the tax authorities' requirements?
According to Janina Fornalik, this may result in the imposition of penalties under the Fiscal Penal Code. Of course, the taxpayer can question such a penalty, i.e. appeal against it and then file a complaint to court. A taxpayer who would issue a bill instead of an invoice to KSeF od on January 1, 2027, he would additionally be exposed to penalties for failing to issue an invoice to KSeF.
Author: Łukasz Zalewski, journalist of the Law section of Business Insider Polska
