Invoices in PDF format without a secure electronic signature
INDIVIDUAL INTERPRETATION IPPP3-443-787 / 10-2 / JF of 2.11.2010. Director of the Tax Chamber in Warsaw
Based on Article. 14b § 1 and § 6 of the Act of August 29, 1997 - Tax Ordinance (consolidated text Journal of Laws of 2005, No. 8, item 60, as amended) and § 7 of the Regulation of the Minister of Finance of 20 June 2007 on the authorization to issue interpretations of tax law (Journal of Laws of 2007, No. 112, item 770, as amended). Director of the Tax Chamber in Warsaw, acting on behalf of the Minister of Finance, states that the Company's position, presented in the application submitted on August 11, 2010 (date of receipt on August 13, 2010), for a written interpretation of the tax law regarding value added tax in the scope of issuing invoices, sending and receiving them by e-mail in PDF format without labeling a secure electronic signature - is incorrect.
On August 13, 2010, the above-mentioned application for a written interpretation of tax law provisions in an individual case regarding tax on goods and services in the scope of issuing invoices, sending and receiving them by e-mail in PDF format without affixing a secure electronic signature.
The following facts are presented in the present application:
The company (Applicant) dealing with the production of paper and paper packaging - bags, cartons, boxes, etc. issues about several thousand invoices monthly for its contractors. Invoices issued (created) in the IT system used by the Applicant, ie SAP-R3, are printed daily and sent to customers. The applicant also sends invoices, the so-called electronic with a secure electronic signature, but this method of distribution of invoices is not positively received by its recipients. The main barrier is the need for electronic circulation and storage of such a document. Only a few percent of customers use this system. Applicants care about the efficient, fast and safe dispatch of invoices, as the recipient waits for the invoice immediately after delivery to check the compliance of the delivery with the order. In addition, the timeliness of payment for the received goods depends on it. It is not without significance for the Applicant, especially with such a large number of invoices sent, to reduce the costs of printing and shipping by traditional mail.
In light of the above, the following questions were asked:
Can the Applicant issue VAT invoices in PDF format and send them by e-mail (e-mail) without affixing the document with a certified electronic signature. In addition, whether the Recipient can deduct VAT from a VAT invoice received by e-mail without an electronic signature.
According to the Applicant:
invoice sent by the supplier and received by the recipient via e-mail without the so-called The electronic signature is a document that meets the requirements of the Act of March 11, 2004 on tax on goods and services, in particular art. 106 and the provisions of the Ordinance of the Minister of Finance of November 28, 2008 on tax refunds to certain taxpayers, issuing invoices, and storing them (Journal of Laws of 2008, No. 212, item 1337, as amended).
The act requires taxpayers to issue invoices stating, in particular, the sale, date of sale, unit price without tax, tax base, tax rate and amount, amount due and data on the taxpayer and buyer. In chapter 3 of the above-mentioned of the regulation, the Minister of Finance extended and clarified the list of conditions to be met by a VAT invoice. Among these conditions, there is no requirement for the VAT invoice to be in a paper form, as well as to be sent in this form. The applicant points out, however, that S. as the recipient of VAT invoices as well as its customers receiving VAT invoices in the form of a PDF file - after receiving the invoice by electronic means, they would print the invoice and store it in paper form. Sending an invoice in the form of a PDF file would allow avoiding the long and costly (taking into account the number of invoices sent) route of transmission. The Supreme Administrative Court ruled on May 20, 2010 (file reference I FSK 1444/09, unpublished) that companies can send invoices by e-mail, and that VAT can be deducted from the invoice received in this way.
In the light of the applicable legal status, the Applicant's position on the legal assessment of the factual situation is considered incorrect.
Pursuant to Art. 106 sec. 1 of the Act of March 11, 2004 on tax on goods and services (Journal of Laws No. 54, item 535, as amended), hereinafter referred to as the Act, the taxpayers referred to in Art. 15, are required to issue an invoice stating, in particular, the sale, date of sale, unit price without tax, taxable base, tax rate and amount, amount due and data on the taxpayer and buyer (...). The above provision shows that the taxpayers who make the sale should issue invoices documenting the activities performed. In the aspect of the case under consideration, it is important to decide what should be understood by the term "to issue". According to the Dictionary of the Polish Language (Wydawnictwo Naukowe PWN, Warsaw 1994), the date issued should be understood as: unsubscribe, fill in, issue, e.g. issue a check, bill, document. Thus, the term "issue" means drawing up a document, in this case an invoice, for the use of the contractor - the recipient of the goods or service. The preparation of such an invoice consists in including in the document with this name, the necessary data, in particular:
- making a sale
- the date of sale
- unit price excluding tax
- tax base
- tax rate and amount
- the amount due
- data on the taxpayer and buyer
There is no doubt that the legal existence of the issued invoice comes down to placing it on the market, i.e. handing over (delivering) the invoice in question to the contractor. Detailed rules for issuing invoices, the data they should contain and the manner and period of their storage are specified in the Regulation of the Minister of Finance of November 28, 2008 on tax refunds to certain taxpayers, issuing invoices, how to store them and the list of goods and services that cannot be VAT exemptions apply (Journal of Laws of 2008, No. 212, item 1337, as amended).
It is true that both the act and the above-mentioned the regulation does not explicitly specify the form in which the invoice is to be issued. It should be noted, however, that the invoice should be issued in two copies - the original and a copy - which results from § 19 section 1 and sec. 2 above of the regulation, the original is given to the buyer and the seller retains the copy. In addition, the original invoice should contain the word "ORIGINAL" and the copy of the invoice should contain the word "COPY". This way of regulating the issue of invoices, issuing two copies and issuing one buyer and keeping the other for himself, unambiguously requires the issuer of the invoice to prepare it in paper form. The consequence of this is that only invoices issued in the above-mentioned way entitle the buyer of goods and services to reduce the output tax by the input tax resulting from the invoices in question.
Tax regulations provide for issuing invoices in electronic form. Invoices issued in this form have been regulated in the Regulation of the Minister of Finance of July 14, 2005 on issuing and sending invoices in electronic form, as well as storing and making these invoices available to the tax authority or tax inspection authority (Journal of Laws No. 133, item . 1119).
And so, according to § 4 of the Regulation on electronic invoices, invoices may be issued, sent and stored in electronic form, provided that the authenticity of their origin and the integrity of their content are guaranteed:
- a secure electronic signature within the meaning of Art. 3 point 2 of the Act of September 18, 2001 on electronic signature (Journal of Laws No. 130, item 1450, as amended), verified with a valid qualified certificate, or
- by electronic data exchange (EDI) in accordance with an agreement on the European Electronic Data Exchange Model, if the concluded agreement relating to this exchange provides for the application of procedures guaranteeing the authenticity of the origin of the invoice and the integrity of the data.
Detailed regulations on issuing electronic invoices justify the claim that the legislator allowed to send electronically only electronic invoices within the meaning of the Regulation of the Minister of Finance of July 14, 2005. The legislator has included a number of conditions that electronic invoices must meet - these conditions relate in particular to system security. In addition, in no provision of the above-mentioned regulation, as well as in any other legal act, did not allow the possibility of sending invoices in the form of a PDF file in the absence of the indicated system security measures.
The above-mentioned provisions show that the legislator clearly stated when invoices may be issued and sent in a form other than paper. Thus, the duality of the form of issued and sent invoices was confirmed: in paper or electronic form. Therefore, sending invoices by electronic means outside of the procedure laid down in the Regulation on electronic invoices is contrary to the provisions of tax law.
The intention of the legislator in distinguishing only invoices in the form of paper invoices and electronic invoices is also confirmed by the regulation specifying the issuing of corrections in paper form to an electronic invoice. And so, pursuant to § 5 sec. 1 and sec. 2 of the Regulation on electronic invoices, corrective invoices and duplicate invoices for invoices issued and sent in electronic form shall be sent in the same form. In cases where formal or technical obstacles make it impossible to issue and send a document in electronic form, in particular if the recipient of invoices withdraws the consent to issue and send them in electronic form, the taxpayer shall issue this document in paper form, with an annotation that the invoice accordingly corrective or duplicate invoice concerns the invoice issued in electronic form.
This provision confirms that even in the event that contractors issue electronic invoices within the meaning of the provisions of the Regulation on electronic invoices using the provided security, they are not entitled to use unsecured electronic means if it is not possible to correct an electronic invoice. In such a situation, a traditional (paper) invoice should be issued.
It should be emphasized that if the legislator allowed the form of sending invoices by e-mail, the requirements for electronic invoices specified in the provisions of the Regulation of the Minister of Finance of July 14, 2005 should be considered redundant. conditions is a deliberate action and directly indicating when it is possible to issue an invoice in a non-paper form.
Similarly, this case was regulated in the provisions of Council Directive 2001/115 / EC of 20 December 2001 amending Directive 77/388 / EEC in order to simplify, modernize and harmonize the established invoicing conditions in the field of value added tax (Journal of Laws of the EU L of 17 January 2002) implemented into the Polish legal system by the Regulation of the Minister of Finance of 14 July 2005. The Directive, as it results from the preamble, in view of the development of electronic trade, in art. 2 provides for the sending of invoices by electronic means, provided that their authenticity is guaranteed by a secure electronic signature or a data exchange system (EDI) or by means approved by 31 December 2008 by the Member State concerned. So far, the quoted regulation of the Minister of Finance exists in Poland on this matter.
The above principles are also confirmed in the regulations contained in Directive 2006/112 / EC of the Council of 28 November 2006 on the common system of value added tax, hereinafter referred to as the directive. Pursuant to Art. Pursuant to Article 218 of the Directive, Member States shall accept as invoices documents or notes in paper or electronic form that meet the conditions laid down in this Chapter. Pursuant to Art. 232 of the Directive, invoices issued in accordance with the above-mentioned provision may be sent in paper form or, subject to the recipient's acceptance, may be sent or made available electronically.
Pursuant to Art. 233 paragraph. 1 of the Directive, Member States accept invoices sent or made available by electronic means, provided that the authenticity of the origin of the invoices and the integrity of their content are guaranteed by one of the following methods:
- by means of an advanced electronic signature within the meaning of art. 2 point 2) of Directive 1999/93 / EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures
- by means of electronic data interchange (EDI) as defined in art. 2 of Commission Recommendation 1994/820 / EC of 19 October 1994 on the legal aspects of electronic data interchange, where the agreement relating to such an exchange provides for the application of procedures guaranteeing the authenticity of the origin and integrity of the data
The above-mentioned provisions clearly show that the invoice may be drawn up and issued only in paper form - i.e. the issuer of the invoice should prepare it in paper form and deliver it to the contractor in this form - or in electronic form, using the agreed methods, as national regulations do not provide for a different method of issuing and sending invoices.
The analysis of the above-mentioned provisions suggests that the only acceptable form of documenting purchase and sale transactions, apart from the paper form, is issuing VAT invoices in electronic form. By providing an invoice via e-mail, the content of this document is undoubtedly transmitted electronically, written in an IT language. Therefore, such invoices must meet the requirements set out in the Regulation of the Minister of Finance of July 14, 2005, because in accordance with § 1 point 1 of the Regulation on electronic invoices, this regulation specifies, inter alia, methods and conditions for issuing and sending invoices in electronic form. Invoices issued, sent, received and stored in electronic form must at least have a guarantee of the unquestionable authenticity of the origin of these documents from the company (person) that issued them and a guarantee of the integrity (non-infringement) of their content.
Therefore, it follows from the above that it is necessary to affix the issued invoices with a secure electronic signature verified by a valid qualified certificate, which is the only type of signature that can, in the present technical condition, guarantee the undisputed authenticity of the origin of these documents from the company (person) that issued them and a guarantee of integrity (non-infringement). their content. Therefore, in the light of the applicable regulations, it is permissible to deliver the invoice to the contractor by electronic means, however, in compliance with the requirements set out in the above-mentioned Regulation of 14 July 2005 on issuing and sending invoices in electronic form.
The presented future event shows that the Applicant is considering improving the circulation of documents between the Company and its contractors. By increasing the efficiency, speed and security of sending invoices, the Applicant intends to issue VAT invoices and send them electronically to contractors in PDF format without a secure electronic signature verified by a valid qualified certificate and without applying the procedures provided for by the provisions of the Regulation to ensure the authenticity of the invoice origin and data integrity. The applicant is also the recipient of such invoices. The above indicates that the Company, as a producer and supplier of paper and paper packaging, intends to receive from suppliers and send to the contractor (buyer) by electronic means VAT invoices only in PDF format. However, they will not be electronic invoices within the meaning of the regulation on electronic invoices.
Considering the analysis of the above-mentioned provisions, it should be stated that sending VAT invoices in PDF format by electronic means, although it can be considered a form of issuing an invoice, cannot be considered as issuing an invoice in the form provided for by the provisions of tax law.
Therefore, if the parties to the transaction want to send invoices in electronic form, and not in paper, they must comply with the provisions of the Regulation of the Minister of Finance of July 14, 2005 on issuing and sending invoices in electronic form. Only then will the invoice be introduced into legal circulation. Although it is possible to submit invoices in the form described by the Applicant, however, under the law, these invoices do not have any legal effects. In this case, we deal only with the delivery, to the recipient's information, of the content of the invoice and not the issue and delivery of the document referred to in Art. 106 sec. 1 of the act.
In view of the above, it should be considered that the VAT invoice issued by the Applicant and then sent to the buyer of the goods by electronic means only in the PDF form without the delivery of the invoice in paper or electronic form provided for electronic invoices within the meaning of the regulation of July 14, 2005 does not is a document that meets the requirements of art. 106 sec. 1 of the Act and executive regulations.Invoices issued in this way are not considered legal documents pursuant to the Act and executive regulations. Since they have not been introduced, they cannot benefit from legal protection, and the recipient is not entitled to apply the right to reduce the amount of tax due by the amount of input tax resulting from the invoices in question, as provided for in Art. 86 sec. 2 point 1 of the Act. As a result, upon receipt of an electronic invoice that does not meet the requirements provided for in the provisions of the Regulation on electronic invoices at the recipient of such an invoice, the right to reduce the output tax does not arise.
Therefore, the Applicant, on the basis of a VAT invoice received electronically in the PDF file format and not being an electronic invoice within the meaning of the provisions of the Regulation on electronic invoices, as the recipient of such an invoice, as the recipient of such an invoice, is not entitled to reduce the amount of tax due by the amount of input tax on the purchase indicated on the invoice. .
Thus, the position of the Applicant should be considered incorrect.
The interpretation concerns the facts presented by the Applicant and the legal status in force on the date of the event in the presented facts.