The Voivodeship Administrative Court in Opole in its judgment of 18 August 2010 case file I SA/Op 215/10 held that copies of VAT invoices can be stored in electronic form, if the files are properly secured and readable and the storage system allows for the reproduction of such invoices in the paper format at the request of tax authority, in its original form.
Archive for: e-invoices
Tax law, case I SA/Op 215/10
September 6th, 2010, Tomasz RychlickiTax law, case I SA/Wr 592/10
August 31st, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in Wrocław in its judgment of 27 July 2010 case file I SA/Wr 592/10 held that the Directive 112 did not include the obligation to keep copies of invoices in the same form in which they were sent. Also § 21(2) of Regulation of the Minister of Finance on 25 May 2005 on the tax refund to certain taxpayers, the advance tax refund, invoicing, the storage of invoices and the list of goods and services, to which the exemptions from taxes on goods and services are not applicable (in Polish: Rozporządzenie Ministra Finansów z dnia 25 maja 2005 r. w sprawie zwrotu podatku niektórym podatnikom, zaliczkowego zwrotu podatku, wystawiania faktur, sposobu ich przechowywania oraz listy towarów i usług, do których nie mają zastosowania zwolnienia od podatku od towarów i usług), does not follow that restriction to the form in which to store invoice was associated with the way they have been sent to the customer or made available to. The Court also noted that the invoice should be issued in duplicate, but this does not mean that the invoice has to be kept identical in form, which is an invoice sent to the buyer. Invoice kept by the issuer and received by the buyer has to be identical in content and therefore the information contained on the invoice relates to the transaction.
Tax law, case I SA/Op 177/10
July 31st, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in Opole in its judgment of 23 June 2010 case file I SA/Op 177/10, pointed to the lack of precision in the national legislation. The court stated that § 21(2) of Regulation of the Minister of Finance on 25 May 2005 on the tax refund to certain taxpayers, the advance tax refund, invoicing, the storage of invoices and the list of goods and services, to which the exemptions from taxes on goods and services are not applicable (in Polish: Rozporządzenie Ministra Finansów z dnia 25 maja 2005 r. w sprawie zwrotu podatku niektórym podatnikom, zaliczkowego zwrotu podatku, wystawiania faktur, sposobu ich przechowywania oraz listy towarów i usług, do których nie mają zastosowania zwolnienia od podatku od towarów i usług), does not provide that the limitation as to the form in which to store invoice is associated with the way they have been sent to the customer or have been made available in a different way. The VAC ruled that a literaly reading of the provisions included in Polish Regulation does not lead to the interpretation that if the invoice is made in a particular paper form, a copy must also be kept in the same form thereof.
Tax law, case ITPP3/443-52/10/JK
July 5th, 2010, Tomasz RychlickiThe Polish newspaper Gazeta Prawna reports in the article entitled “Faktury papierowej nie można przechowywać w formie elektronicznej” on the individual interpretation of the Director of Tax Chamber in Bydgoszcz of 17 June 2010 No. ITPP3/443-52/10/JK regarding e-invoices. The Director explained that there is no possibility to store electronic invoices, which were issued and sent to the contractor in paper form. The tax regulations do not provide that taxpayers can store documents, copies of sales invoices issued in paper form, in electronic form, with the possibility of printing only when the need arose. On the contrary, these regulations require the taxpayer to retain copies of sales invoices and correction invoices in the original form that was created at the time of issue of the originals of these documents. In addition, there is no legal basis for the application of such a mixed-mode, in which on the one hand the invoice would be issued in paper form, and copies of invoices to be kept in the electronic form.
An entrepreneur seeking to reduce costs associated with invoicing can sign invoices issued in the electronic form with the qualified electronic signature, and after prior approval obtained from the recipient of such a document, send it via e-mail, deliver it on a CD or other electronic medium. Such system of delivery of documents that also ensures its authenticity and integrity, not only reduce the cost of billing on the drawer side, but also reduce costs of customers of such entrepreneur, and will be in accordance with the provisions governing the matter of invoicing.
The Polish Ministry of Finance treats only two types of invoices as legitimate way of billing if they could not be received personally. These are paper invoices that one may send to its customer by post or courier, or electronic, not so popular, because to use it the entrepreneurs must pay for the so-called qualified e-signature.
The Polish newspaper Gazeta Wyborcza reports in its article entitled “Zabawa w zginanie faktur” that lots of companies in Poland send invoices by e-mail in the attached file (usually scanned), because it’s faster, more convenient and cheaper. One does not pay for stamps or envelopes. There is only one problem – the tax authorities believe that it is illegal activity. In the case of tax control, a company is threaten by financial penalties.
But Polish entrepreneurs have found a solution for such unrealistic approach. The invoice that was received by e-mail is printed and bend in half. It looks like it was taken out of the envelope. There is no provision in the tax law tha would require the storage of envelopes. The tax control is not able to prove that it wasn’t printed by the issuer of the invoice and send by post or courier. Almost everyone is happy.
The Ministry of Finance respects the decision of the Supreme Administrative Court that was described in the post entitled “Tax law, case I FSK 1444/09“, but it does not mean that the Ministry agrees with legal arguments presented by the SAC. The Republic of Poland is a civil law country and there are no binding precedents. It means the every entrepreneur would have to go the same way as the one whose case ended before the SAC.
See also “Tax law, case III SA/Wa 396/10“.
Tax law, case I FSK 1444/09
May 21st, 2010, Tomasz RychlickiThe Polish entrepreneur asked the Director of the Tax Chamber in Kraków, whether the inclusion in the billing of VAT of the amount of tax charged on the purchase of goods and services on the basis of invoices and correction invoices received by e-mail or fax, not in the form of electronic invoices with digital signature, is correct. The Director ruled that such interpretation is incorrect. The Company did not agree with this decision and filed a complaint to the administrative court. The Voivodeship Administrative Court (VAC) in Kraków in a judgment of 17 March 2009, case file I SA/Kr 97/09 dismissed the case. The Company filed a cassation complaint. The Supreme Administrative Court in a judgment of 20 May 2010, case file I FSK 1444/09, ruled that invoices that were sent via fax or e-mail are equivalent to these sent via traditional mail. What’s more important, such invoices do not need any electronic signature.
Tax law, case III SA/Wa 396/10
April 18th, 2010, Tomasz RychlickiThe Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 8 April 2010, case file III SA/Wa 396/10, ruled that there is no legislative impediment to the existence of a mixed system for the storage of invoices, which consists of sending an invoice in paper and storage of its electronic copies with the option to print at the request of a legitimate authority. Such an interpretation was corroborated by teleological considerations, environmental and economic. According to the VAC the different findings would lead to a breach of the principle of proportionality, as set out in article 5(3) of the Treaty on European Union.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C 83 of 30 March 2010. PDF files.
Tax law, case I FSK 1169/08
August 31st, 2009, Tomasz RychlickiThe Supreme Administrative Court (SAC) in its judgment of 3 October 2009 case file I FSK 1169/08 did not share the views that the the Directive 112 provides the absolute obligation to keep copies of invoices in the same form in which they were sent. In the opinion of the SAC, the only thing that can be inferred from the Directive is that the copy of the invoice can be stored in paper or electronic form. It is also wrong to confuse the term “issue” and “send” with regard to invoices. The Polish legislator did not exactly implement standards resulting from the Article 27(2) of the Directive. The omission of the phrase “in which they were sent or issued”, leads to ambiguity in language interpretation of the law. There is no legislative impediment to the existence of “mixed” system for sending and storage of invoices. In addition, the SAC decided that the obligation to keep invoices on paper, where other methods of storage also enable the objectives of Article 246 Directive 112 to be fullfiled, is the excessive responsibility and violates the principle of proportionality.