Issuing and storing invoices in electronic form

Service-Tax

Individual ruling of February 15, 2011, file ref. IBPP3 ​​/ 443-918 / 10 / PK, Director of the Tax Chamber in Katowice

Based on Article. 14b § 1 and § 6 of the Act of August 29, 1997. Tax Ordinance (Journal of Laws of 2005, No. 8, item 60, as amended) and § 2 and § 5 of the Regulation of the Minister of Finance of June 20, 2007. on the authorization to issue interpretations of tax law (Journal of Laws No. 112, item 770, as amended), the Director of the Tax Chamber in Katowice, acting on behalf of the Minister of Finance, states that the Applicant's position presented in the application (date of receipt on November 29, 2010 ), supplemented with letters of January 31, 2011. (date of receipt on February 4, 2011) and of February 14, 2011, for a written interpretation of the tax law regarding value added tax, in the scope of issuing and storing invoices in electronic form - is correct.

JUSTIFICATION

On November 29, 2010. was submitted in the above-mentioned application for a written interpretation of the tax law in an individual case regarding value added tax, in the field of issuing and storing invoices in electronic form. Above the application was supplemented with letters of January 31, 2011. and of February 14, 2011.

The following future event is presented in the present application:

The applicant is a limited liability company engaged in the production, sale and distribution of bottled spring water. The company provides water to both business entities and natural persons.

In connection with its operations, the Company issues and sends its customers several thousand VAT invoices every month. The company is considering the possibility of introducing electronic issuing and sending invoices to customers in accordance with the requirements of the Regulation of the Minister of Finance of December 17, 2010. on sending invoices in electronic form, rules for their storage and the procedure for making them available to the tax authority or the fiscal control authority (Journal of Laws No. 249 item 1661) (hereinafter referred to as the Regulation). VAT invoices will be sent to customers who agree to it in the form prescribed by law, by e-mail or made available on a dedicated server (available after logging in by the customer). The authenticity of the origin of the VAT invoice and the integrity of its content would be guaranteed by a secure electronic signature within the meaning of Art. 3 point 2 of the Act of September 18, 2001 on electronic signature, verified with a valid qualified certificate. Thanks to the use of an electronic signature, the sent electronic documents will reach the addressee intact, and any change in their content will be signaled by the recipient's software. For efficient operation and timely issuing of electronic invoices, the Company will conclude an agreement with a specialized third party that will prepare and send electronic invoices on its behalf. The company will act as the invoice issuer (it is the one who provides the water delivery services that are the subject of the invoice), but the physical activities related to the process of issuing and sending invoices and storing them on a separate server will be performed by its subcontractor. It is the Company's subcontractor who will purchase the appropriate software enabling electronic signature and a qualified certificate authorizing its use.

At the same time, the Company is getting ready to receive electronic VAT invoices issued by its contractors. However, due to the technical complexity of the process and the huge number of invoices (both issued by the Company and received), the readiness to accept electronic invoices may not coincide with the readiness to issue and send electronic invoices.

In connection with the analysis of the provisions, several doubts arose, after their verification and analysis of the relevant provisions of the tax law, the Company asks for confirmation of the position presented below.

The company intends to store invoices issued in electronic form on the territory of the country, using the servers of a third party professionally dealing with the transmission of electronic invoices. This entity will act on behalf of the Company.

The Regulation currently in force obliges taxpayers to store electronic invoices in a manner ensuring immediate access to these invoices for tax authorities and fiscal control authorities upon their request (§ 6 point 3). At the same time, these invoices should be made available to the authorities in a manner enabling the immediate collection of these invoices and the processing of data contained therein by the tax authorities (§ 8 of the Regulation).

In the opinion of the Company, the interpretation of the above provisions may be the same as the interpretation of § 6 item 1 of the repealed Regulation presented by the Company in point 6 of the application.

In the opinion of the Company, its arguments presented in the remaining points of the application also remain valid, despite the change in the content of the Regulation itself.

In connection with the above, the Company requests confirmation that, in the light of the provisions of the Regulation:

  • Obtaining the client's consent to send him invoices in an electronic version does not oblige the Company to issue invoices in this form from the day after obtaining the consent - the parties may freely set the date from which they will issue invoices in the electronic version, provided that this date is later than the date of receipt of consent from the contractor;
  • The fact of obtaining the consent of the contractor to send him invoices in an electronic version does not oblige the Company to receive invoices in the same form from that contractor;
  • The company is not required to inform the Head of the Tax Office about issuing invoices in an electronic version. Such an obligation existed only for taxpayers who used the electronic version of invoices before January 1, 2006;
  • The company is not required to use its own technical and human resources in the process of issuing invoices in an electronic version - these activities may be commissioned to a third party (subcontractors), provided that the issued invoices meet the requirements of Article 106 of the VAT Act;
  • The archive, in which invoices will be stored in an electronic version (both issued and received), does not have to be run directly by the Company, you can entrust the operation of the e-archive "to an external entity on the basis of a concluded contract for the provision of services;
  • The access of fiscal control authorities to electronic invoices stored in the archives specified in § 6 (1) of the Regulation should be provided electronically in an immediate, full and continuous manner, but this does not mean access by a rope, 24 hours a day without restrictions;
  • Can corrective invoices issued for e-invoices be issued in a paper version, when the Company's system does not allow for issuing corrective invoices in an electronic version ...

According to the Applicant,

Ad 1 and 2

The rules for obtaining consents from contractors to receive invoices in an electronic version are regulated by § 3 of the Regulation, which states that: invoices may be issued and sent in electronic form, provided that the recipient of the invoice first accepts this form, hereinafter referred to as "acceptance". Acceptance may be in writing or in electronic form. In the case of acceptance in electronic form, the provisions of § 4 shall apply accordingly.Invoices may be issued and sent in electronic form not earlier than from the day following the day on which the invoice recipient has accepted it. In the event of withdrawal of acceptance by the recipient of the invoice, the invoice issuer loses the right to issue and send invoices to the recipient in electronic form from the day following the day on which he received the notification from the recipient about the withdrawal of acceptance. "The supplier of goods or services, after receiving the consent of the contractor (acceptance) may issue and send invoices in electronic form. The provision stipulates the first applicable date for electronic invoices - not earlier than from the day following the approval, but does not restrict taxpayers to set a different date, provided that it is a later date. in Electronic invoicing can be very crucial for the Company. The company is currently working on a system enabling electronic invoicing, it is able to determine the date on which it will complete the work. At the same time, it could start the process of obtaining customer consent to send them electronic invoices - in the consent form, it would indicate the date from which it will be ready with the entire process. Thus, today it would start creating a database of customers to whom it will send invoices in a modern form. In the opinion of the Company, the provisions of the Regulation do not require contractors to issue / receive mutual e-invoices, i.e. the fact of obtaining the consent of the contractor to send him invoices in an electronic version does not automatically oblige the Company to receive invoices in this form for services provided by this contractor on Company benefit. The legal norm in § 3 speaks of the party issuing the invoices, but it also applies to the party that is the recipient of these invoices. At the same time, none of the provisions of the Regulation imposes an obligation on the parties to take mutual actions, i.e. if the contractor agrees to accept invoices in electronic form, it does not mean that he is also obliged to issue invoices in this form.

This interpretation is also supported by the need to reconcile the content of the legal regulation with the economic reality. Entrepreneurs, VAT taxpayers, have various financial and accounting systems, therefore, in many cases, launching the electronic exchange of all invoices, either one or two-way, can be an extremely complex and therefore costly process.

Ad 3

Pursuant to § 7 point 1, the obligation to inform the Head of the Tax Office of the intention to issue or receive invoices in an electronic version applied only to taxpayers intending to use this form of invoicing before January 1, 2006. Currently, taxpayers implementing the system of electronic invoices are not obliged to provide information with respect to the Head of the Tax Office competent for them, except for the obligation to inform about the archive located in the territory of another European Union country.

Ad 4 and 5

Art. 106 of the VAT Act and the provisions of the Regulation under analysis do not require the Company to issue invoices in person, using its own technical and human resources. It is important that the invoice includes all the elements necessary to recognize a given document as an invoice within the meaning of the provisions of the VAT Act (including the correct marking of the seller and buyer and the subject of trade). The Applicant will be the invoice issuer (and delivering the goods). The subcontractor will act on behalf of the Company, and its role is limited only to performing certain technical activities related to generating invoices based on the data provided by the Company, signing it with an electronic signature, sending it to the client and storing it on its own server at an address agreed with the Company.

In the opinion of the Company, also the archive in which invoices will be stored in an electronic version (both issued and received) does not have to be run directly by it, it is possible to entrust the operation of the e-archive to an external entity on the basis of an appropriate agreement. The issues of storing and archiving invoices in an electronic version are regulated in § 6 of the Regulation. Points 1 and 2 of this provision clearly indicate that invoices issued in electronic form may be stored in the territory of the country (Poland) or in the territory of European Union Member States (but in the latter case, the taxpayer is obliged to inform the tax authorities about the place of their storage). The regulations do not exclude the possibility of creating and maintaining an archive of e-invoices outside the Company's registered office (invoice issuer / recipient). These regulations are consistent with the provisions of the Accounting Act in the area of ​​bookkeeping and document storage. According to Art. 11 of the Accounting Act (Journal of Laws of 2002, No. 76, item 694, as amended), books of accounts are generally kept at the headquarters of the entity. Books of accounts may be kept on the territory of the Republic of Poland outside the headquarters of the entity, if they are computer-operated and if they are entrusted with a natural person, legal person or entity without legal personality, authorized to provide such services. If the books of accounts are not kept at the headquarters of the entity, the head of the entity is obliged to:

  • notify the competent tax office about the place of bookkeeping within 15 days from the date of issuing the books outside the seat of the unit (branch, plant),
  • ensure the availability of books of accounts for audit by authorized external control bodies at the headquarters of the entity.

The provisions of § 6 point 5 of the Regulation define only the form and format of invoices that should be kept when archiving e-invoices, and not the location of the archive itself. The wording of the invoice sent in electronic form should be stored by their issuer and recipient "should be read in conjunction with the previous provisions of this paragraph. This provision does not exclude the possibility of outsourcing the provision of electronic archive services to the Company for the Company.

Ad 6.

In the opinion of the Company, the access of tax authorities to invoices issued in electronic form cannot consist in unlimited access to the e-archive 24 hours a day. This access must be provided by the taxpayer in an electronic version, but in a way that ensures IT security for the taxpayer's systems. Pursuant to § 6 point 1, the issuer / recipient of invoices in electronic form is obliged to provide tax authorities or fiscal control authorities with immediate, full and continuous access to invoices by electronic means, in particular to ensure the possibility of documented collection and use of these invoices. invoices by these authorities, including their printing, as well as ensuring the legibility of these invoices. The Regulation does not define what this immediate, full and continuous access is to be. Interpreting the provision literally, it can be concluded that the authority should have access to the taxpayer's archives 24 hours a day, practically without any restrictions. On the other hand, it is difficult to imagine that the legislator would want to impose an obligation on the taxpayer to provide each authorized tax office with unlimited access to the server. Such a solution (apart from technical difficulties) could mean a permanent and unlimited tax control at the taxpayer's place (tax authorities, having unlimited access to invoices issued and stored in electronic form, could freely analyze them, also without the taxpayer's knowledge). Such action, however, would be contrary to the provisions of the Tax Ordinance - firstly, with the basic principle of tax proceedings - keeping the written form, and secondly, with the provisions on tax inspection. Pursuant to Art. 126 of the Tax Ordinance, tax matters are settled in writing. The taxpayer must be notified in writing about the initiated tax proceedings or tax inspection and its scope (the inspecting authority must indicate a specific tax and period). On the other hand, pursuant to Art. 286 of the ordinance, the inspector is entitled to enter the premises and premises of the inspected body, request access to files, books and all kinds of documents related to the subject of the inspection, as well as make copies, copies, extracts, notes, printouts and documented data download in electronic form. The above rights cannot be freely extended.

In the world of developed electronic and IT services, it seems natural that the tax authority should have access to invoices archived in electronic form, also in this form. This access can be ensured in a manner that is safe for both parties - e.g. by recording the indicated invoices on a CD or other electronic medium in a readable form that allows their analysis, and printing with software that allows them to be read in the format in which they were issued. Recording and delivery of such data can be provided in a very short time at the request of the authority in the presence of the controlling party.

Ad 7.

Pursuant to § 5 point 1 of the Regulation, corrective invoices and duplicate invoices for invoices issued and sent in electronic form are sent in the same form. However, point 2 refers to a situation where the taxpayer is not able to meet this requirement for technical reasons - in cases where formal or technical obstacles prevent the issuing and sending of the document referred to in paragraph 1 in electronic form, 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, adding an annotation on it that a corrective invoice or a duplicate invoice applies to an invoice issued in electronic form. The content of the quoted legal norm clearly shows that in certain situations the taxpayer may issue traditional invoices in paper form. Such a difficulty (technical obstacle) is, in the opinion of the Company, the limitations in its accounting system, which physically does not allow for issuing a corrective invoice in an electronic version. The company is and will be able to issue corrective invoices in a paper version and annotate them that they are issued as corrections to documents issued in an electronic version.

In supplementing the Application, the Company indicated that on 1 January this year. Regulations of the Minister of Finance of December 17, 2010 apply. on sending invoices in electronic form, the rules for their storage and the procedure for making them available to the tax authority or the fiscal control authority. At the same time, this regulation repealed the regulation indicated by the Company in the application in question. In connection with the above, he asks for an interpretation of the provisions of the tax law in the scope of the provisions currently in force. In the opinion of the Company, its argumentation remains valid, despite the change in the content of the Regulation itself.

, p> In the light of the applicable legal status, the position of the Applicant regarding the legal assessment of the presented future event is considered correct.

The issue of sending and storing invoices in electronic form from January 1, 2011. regulated by the Regulation of the Minister of Finance of December 17, 2010 on sending invoices in electronic form, the rules of their storage and the procedure for making them available to the tax authority or the fiscal control authority (Journal of Laws No. 249 item 1661) issued on the basis of the delegation contained in Art. 106 sec. 10 and 11 of the Act of March 11, 2004. on tax on goods and services (Journal of Laws No. 54, item 535, as amended). Above the ordinance repeals the ordinance of the Minister of Finance of July 14, 2005. on issuing and sending invoices in electronic form, as well as storing and sharing these invoices with the tax authority or the tax inspection authority (Journal of Laws No. 133, item 1119) - § 10 of the Regulation.

Pursuant to § 2 para. 1, § 3 sec. 1 and sec. 2 and § 4 of the above-mentioned of the Regulation, invoices may be sent, including made available, in electronic form in any electronic format, provided that the recipient of the invoice has previously approved this method of sending invoices, hereinafter referred to as "acceptance". Acceptance or its withdrawal may be expressed in writing or in electronic form.

Invoices may be sent in electronic form provided that the authenticity of the origin and integrity of the invoice content is ensured, where by:

  • the authenticity of the origin of the invoice means certainty as to the identity of the supplier of the goods or the service provider or the issuer of the invoice;
  • the integrity of the content of the invoice is understood as not having changed the data that the invoice should contain in the invoice.

Pursuant to § 2 sec. 2 of the Regulation, the authenticity of origin and the integrity of the content of the invoice are preserved, in particular when using:

  • 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
  • electronic data interchange (EDI) in accordance with the contract on the European Electronic Data Exchange Model, where the concluded contract relating to this exchange provides for the application of procedures guaranteeing the authenticity of the origin of the invoice and the integrity of its data.

In the light of the above, it should be stated that an electronic invoice should be considered a document for which the identity of the issuer (seller) and the integrity of the content is ensured and was sent by electronic means after prior approval of the recipient (buyer) as to this form of sending invoices.

However, what is most important from the point of view of the present case, that § 3 para. 1 of the Regulation allows for the possibility of sending invoices in electronic form, after meeting the above-mentioned requirements, however, it does not oblige the seller to issue invoices in electronic form after obtaining the recipient's approval to issue invoices in this form. Thus, the moment from which the seller starts issuing invoices in electronic form (after obtaining approval) can be determined by the interested parties.

As already indicated, invoices may be sent in electronic form, provided that this method of sending invoices has been previously approved by the recipient of the invoice. The provisions of the regulation in question do not in any way bind the right to issue an invoice in electronic form from the issuer's undertaking to receive invoices in this form.

The provisions of the above-mentioned The ordinances do not impose an obligation to inform the competent Head of the Tax Office about the intention to issue or receive invoices in electronic form.

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 VAT Act, taxpayers referred to in art. 15, are required to issue an invoice stating, in particular, the sale, date of sale, unit price without tax, tax base, tax rate and amount, the amount of the duty and the data of the taxpayer and the buyer, subject to paragraph 2. 2, 4 and 5 and article. 119 paragraph. 10 and art. 120 paragraph 16.

Above the provision obliges the seller to document the sale by issuing a VAT invoice.However, the legislator did not limit the operation of Art. 98 of the Civil Code Act, which provides for the possibility of acting through an attorney. Therefore, it should be stated that the third party may issue and send invoices on behalf of and for the benefit of the Applicant, acting on the basis of an appropriate power of attorney.

The method of storing electronic invoices is specified in § 6-8 of the ordinance on sending invoices in electronic form (). Pursuant to these regulations, invoices sent electronically are stored broken down into settlement periods in any way that ensures:

  • the authenticity of the origin, integrity of the content and legibility of these invoices from the time of their issuance until the expiry of the tax liability limitation period;
  • easy to find them;
  • the tax authority or the tax inspection authority upon request, in accordance with separate regulations, immediate access to invoices.

Invoices sent in electronic form may be stored in electronic form outside the territory of the country, provided that the tax authority or the fiscal control authority, by electronic means, has on-line access to these invoices.

Pursuant to § 21 of the Regulation of the Minister of Finance of November 28, 2008 on tax refund to certain taxpayers, issuing invoices, how to store them and the list of goods and services to which VAT exemptions do not apply (Journal of Laws No. 212, item 1337, as amended), taxpayers are required to store originals and copies of invoices and corrective invoices, as well as duplicates of these documents until the tax liability expires.

Taxpayers keep invoices, correction invoices, and duplicates of these documents, broken down into accounting periods, in any way that ensures:

  • the authenticity of the origin, integrity of the content and legibility of these invoices from the time of their issuance until the expiry of the tax liability limitation period;
  • easy to find them;
  • the tax authority or the tax inspection authority upon request, in accordance with separate regulations, immediate access to invoices, and in the case of invoices stored in electronic form, enabling these authorities also to process the data contained therein.

The authenticity of origin referred to in paragraph 2, point 1, means certainty as to the identity of the supplier of goods or service provider or the issuer of the invoice.

The integrity of the content referred to in paragraph 2 point 1 means that the data that should be included in the invoice have not been changed in the invoice. "

Above the regulations do not specify the entity that should keep the archive of issued or received electronic invoices. Therefore, it should be considered that the Applicant may commission a third party to keep the invoice archive.

Pursuant to Art. 285a § 1 of the Act of August 29, 1997. Tax Ordinance (Journal of Laws of 2005, No. 8, item 60, as amended), hereinafter referred to as the Ordinance, inspection activities are carried out at the controlled seat, in another place where documentation is stored and in places related to its activities and during its hours conducting, and in the case of shortening the time of conducting business activity during the control - the control activities may be conducted for 8 hours a day. If the tax books are kept or stored outside the registered office of the controlled entity, the controlled entity, upon request of the controller, is obliged to provide access to the books at its premises or in the place where they are kept or stored, if making them available at the premises may significantly hinder the ongoing operations of the controlled entity.

Pursuant to Art. 286 § 1 point 4 of the ordinance, the controlling persons, in the scope resulting from the authorization, are in particular entitled, inter alia, to to demand that files, books and all kinds of documents related to the subject of control be made available and to prepare copies, copies, extracts, notes, printouts and documented data downloading in electronic form.

Invoices sent in electronic form and stored in this form are made available to the tax authority and the fiscal control authority in a manner enabling these authorities to immediately collect them and process the data contained therein. At the same time, provided that these invoices are not stored outside the country, the legislator has not imposed an obligation to provide online access to these invoices.

Control activities may be conducted only during the business hours of the controlled entrepreneur. In the event of shortening the time of conducting business activity during the control, the control activities may be carried out for 8 hours a day. This rule is to guarantee the inspector a minimum number of hours a day which he may spend on inspection activities carried out at the inspected party's premises or elsewhere in his business.

The applicant indicates the possibility of recording the indicated invoices on an electronic medium in a readable form that allows their analysis, and printing with software that allows them to be read in the format in which they were issued. This method of making invoices available in the light of the above-mentioned regulations is perfectly acceptable, which, however, does not mean that the inspecting person cannot inspect the invoice storage place by reading the invoices directly from the server on which they are saved.

Regarding corrective invoices, it should be noted here that in the above-mentioned regulation, the legislator did not refer to correcting invoices, therefore, attention should be paid to § 19 para. 1 and sec. 3 of the Regulation of the Minister of Finance on tax refund to certain taxpayers, issuing invoices, their storage and the list of goods and services to which the VAT exemption does not apply, according to which invoices and corrective invoices are issued at least in two copies, the original is received by the buyer and the copy is kept by the seller. The above provision does not apply to invoices and corrective invoices sent in electronic form. In the case of these invoices, the seller sends them, including making them available, to the buyer, while keeping them in his records.

On the basis of the above, it should be stated that when it is mentioned in the regulation of 17 December 2010 on sending invoices in electronic form, the rules of their storage and the procedure for making them available to the tax authority or the fiscal control authority, this term should be understood as both the original invoice and the corrective invoice, because the legislator in the legal act regulating the general principles of issuing invoices establishes the standard according to which in electronic form you can accept both the original invoice and the corrective invoice. Additionally, it should be noted that the above-mentioned regulation does not require corrective invoices to invoices issued and sent in electronic form to be issued and sent in this form.

To sum up:

  • the moment from which the seller starts issuing invoices in electronic form (after obtaining approval) may be determined by the interested parties,
  • the provisions of the Regulation on electronic invoices in no case bind the right to issue an invoice in electronic form from the issuer's obligation to receive invoices in this form,
  • provisions of the above-mentioned the ordinances do not impose an obligation to inform the competent Head of the Tax Office about the intention to issue or receive invoices in electronic form,
  • a third party may issue and send invoices on behalf of and for the benefit of the Applicant, acting on the basis of an appropriate power of attorney,
  • The applicant may commission a third party to keep the invoice archive,
  • The taxpayer is not required to provide control authorities with online access to electronic invoices when they are stored in the territory of the country,
  • There is no requirement for corrective invoices to be issued and sent in electronic form to be issued and sent in this form.

Thus, the position of the Applicant should be considered correct.

The interpretation concerns the future event presented by the Applicant and the legal status in force on the date of issuing the interpretation.

The party has the right to lodge a complaint against this interpretation of tax law due to its inconsistency with the law. The complaint is lodged with the Provincial Administrative Court in Kraków, ul. Rakowicka 10, 31-511 Kraków, after a prior written request from the authority which issued the interpretation within 14 days from the date on which the complainant learned or could learn about its issuance until the violation of the law was remedied (Article 52 § 3 of the Act of 30 August 2002. Law on proceedings before administrative courts, Journal of Laws No. 153, item 1270, as amended). A complaint to the Provincial Administrative Court shall be lodged (in two copies of Art. 47 of the above-mentioned Act) within thirty days from the date of delivery of the authority's response to the summons to remedy the infringement of law, and if the authority did not respond to the summons, within sixty days from the date of filing the summons. (art. 53 § 2 of the above-mentioned act).

The complaint is lodged through the body whose action or inaction is the subject of the complaint (Article 54 § 1 of the above-mentioned Act) to the following address: Tax Chamber in Katowice, National Tax Information Office in Bielsko-Biała, ul. Traugutta 2a 43-300 Bielsko-Biała.

ORD-IN request

Director of the Tax Chamber in Katowice