Individual ruling of May 13, 2011, file ref. ITPP3 / 443-56 / 11 / JK, Director of the Tax Chamber in Bydgoszcz
Individual ruling of May 13, 2011, file ref. ITPP3 / 443-56 / 11 / JK, Director of the Tax Chamber in Bydgoszcz
The authority could not agree with the Applicant's position in full, as it was indicated in the application that the only condition for the use of electronic invoice transmission is prior approval of this method of sending invoices by the invoice recipient - the Company's position should be considered incorrect.
Based on Article. 14b § 1 and § 6 of the Tax Ordinance of August 29, 1997 (ie Journal of Laws of 2005, No. 8, item 60, as amended) and § 2 and § 4 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 Bydgoszcz, acting on behalf of the Minister of Finance, states that the position of the Company presented in the application of March 1, 2011 (date of receipt on March 9, 2011) supplemented with a letter of March 29, 2011 for the issuance of an individual interpretation of tax law provisions regarding value added tax in the scope of the possibility of tax deduction on the basis of invoices sent by e-mail - is incorrect.
JUSTIFICATION
On March 9, 2011, an application was submitted for an individual interpretation of tax law provisions regarding value added tax in the scope of the possibility of tax deduction on the basis of invoices sent by e-mail.
The following future event is presented in this proposal.
As part of the business, the applicant performs a number of transactions that are documented with VAT invoices. In connection with the above, in accordance with the provisions of the VAT Act, the Company is obliged to both issue and receive a large number of invoices. So far, the Company, as a recipient, received only copies of invoices issued for it by e-mail, while the original was sent to the Company via traditional mail. The above model of delivering invoices is, according to the Applicant, highly ineffective, costly and time-consuming for both parties to the transaction. Often times, invoices are lost by the post office. Currently, some of the Applicant's contractors consider the possibility of sending the original sales invoices by e-mail as an attachment to the e-mail in PDF format. The original invoices would therefore be sent to the Applicant by e-mail, and then the Company would print the received invoices and store them in paper form.
The following question was therefore asked.
Do the VAT invoices received by the Applicant as an attachment to the e-mail in PDF format, which are not electronic invoices with an electronic signature, then printed and stored in paper form, constitute the basis for reducing the amount of VAT due by input tax in the month in which the company receives an e-mail with an attachment containing the invoice sent in this way ...
Applicant's position.
In the opinion of the Applicant, VAT invoices received by the Company as an attachment to the e-mail, in PDF format, which are not electronic invoices with an electronic signature, then printed and stored in paper form, entitle it to reduce the amount of VAT due by the tax charged in the month, in which the Company received an e-mail with an attachment containing the invoice sent in the manner described.
The interested party indicates that the domestic legislator does not express its opinion in Art. 106 sec. 1 of the act on tax on goods and services as to the need for VAT taxpayers to issue paper invoices. Pursuant to this provision, 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, 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 of the Act. In art. 106 sec. 1, the legislator does not comment on the form of the invoice. A linguistic interpretation of the said provision does not preclude invoices from being issued also in a non-paper form. In particular, it should be acknowledged that the use of the expression issues by the legislator does not limit the scope of regulating the indicated provision to paper invoices. The Ordinance of the Minister of Finance of 17 December 2010 on sending invoices in electronic form, rules for their storage and the procedure for making them available to the tax authority or fiscal control authority (Journal of Laws No. 249, item 1661) states that invoices may be sent, including made available in electronic form in any electronic format, subject to prior approval of this method of sending invoices by the invoice recipient. Moreover, pursuant to Art. 233 and 234 of Directive 2006/112 / EC, Member States may not restrict the possibility of drawing up and sending invoices in electronic form only to situations where these invoices will also be stored in electronic form. In the opinion of the Applicant, the use of invoices printed by the parties to the transaction on paper and stored in this form does not reduce the security of legal transactions as compared to the situation where invoices are in paper form from the very beginning and are transferred to the recipient in this form. The above was confirmed by the Supreme Administrative Court in Warsaw in the judgment of May 20, 2010, file ref. act I FSK 1444/09 confirming the right to draw up non-paper invoices, not equipped with an electronic signature, then printed by both parties to the transaction in paper form (or the existence of this right), and consequently the right of the buyer who received and printed such an invoice to deduct the tax VAT. The verdict of the Supreme Administrative Court of November 3, 2009 (file reference number I FSK 1169/06) also supports the admissibility of sending an invoice by electronic means and storing it on a paper carrier.
In the light of the applicable legal status, the Applicant's position on the legal assessment of the presented future event is considered incorrect.
Pursuant to Art. 86 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, to the extent that goods and services are used to perform taxable activities, the taxpayer referred to in art. 15, has the right to reduce the amount of tax payable by the amount of the input tax, subject to article 22. 114, art. 119 paragraph. 4, art. 120 paragraph 17 and 19 and article. 124. Pursuant to para. 2 of the aforementioned provision, the amount of the input tax is, subject to the provisions of paragraph 2. 3-7:
the sum of the tax amounts specified in the invoices received by the taxpayer:
for the purchase of goods and services, confirming the prepayment (advance payment, deposit, installment), if they were related to the emergence of a tax obligation, from the principal for the supply of goods being the subject of a commission contract
taking into account the discounts specified in art. 29 sec. 4; in the case of import of goods - the sum of the tax amounts resulting from the customs document and the import declaration, subject to point 5; a flat-rate tax refund referred to in Art. 116 sec. 6; the amount of tax due on the import of services, the amount of tax due on the supply of goods for which the purchaser is the taxpayer, and the amount of tax due on intra-Community acquisition of goods; the amount of tax due on the import of goods - in the cases referred to in art. 33a. Pursuant to Art. 106 sec. 1 of 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, 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.
As can be seen from the above, the tax charged on the purchased goods and services results from the invoices received by the taxpayer. At the same time, the right to deduct depends on the taxpayer's receipt of an invoice in accordance with the requirements and procedure provided for in the provisions of tax law.
Pursuant to the provisions of § 3 sec. 1-3 of the Regulation of the Minister of Finance of December 17, 2010 on the transmission of 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), hereinafter referred to as the regulation, invoices may be sent, including made available, in electronic form in any electronic format, subject to prior approval of this method of sending invoices by the recipient of the invoice. Acceptance or its withdrawal may be expressed in writing or in electronic form. If the recipient withdraws the acceptance of the invoice, the invoice issuer loses the right to send invoices to that recipient in electronic form from the day following the day on which he received the recipient's notification about the withdrawal of acceptance, unless the parties agree on a different date for the issuer to lose the right to send invoices in the form of electronic, but not longer than 30 days. On the other hand, in accordance with § 4 of the Regulation, invoices may be sent in electronic form, provided that the authenticity of the origin and integrity of the invoice content are ensured.
However, pursuant to § 2 sec. 1 of the regulation, whenever the regulation refers to:
authenticity of the origin of the invoice - it means certainty as to the identity of the supplier of goods or service provider or the issuer of the invoice; integrity of the content of the invoice - it means that the data that should be included in the invoice has not been changed in the invoice. Pursuant to the provisions of § 2 sec. 2 of the Regulation, the authenticity of the origin and 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 European Agreement a model for the exchange of electronic data, if 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 addition, pursuant to § 6 of the Regulation, invoices sent electronically are stored 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. Therefore, the above-mentioned provisions of the regulation define the method and conditions for sending invoices in electronic form and the rules for their storage and disclosure to authorized bodies. Currently, the taxpayer is not required to apply specific procedures ensuring the authenticity and integrity of electronic invoices - a secure electronic signature and electronic data interchange (EDI) system. The provisions of the regulation do not specify the electronic format in which an electronic invoice may be sent, therefore it may also be sent in PDF format, with the possibility of sending in this form also invoices issued in paper form and sent by e-mail. It should also be pointed out that, as a rule, invoices may be sent in electronic form, provided that the authenticity of the origin and integrity of the invoice content is ensured. The authenticity of origin means certainty as to the identity of the supplier of goods or the service provider or the invoice issuer, while the integrity of the content means that the data that should be included in the invoice has not been changed in the invoice. At the same time, it was indicated that the subject features of invoices will be retained in relation to invoices sent in electronic form in the case of using a secure electronic signature, verified by means of a valid qualified certificate or electronic data interchange (EDI). The indicated methods of ensuring the invoice features in question are only an example calculation, which means that the taxpayer may use any other means of ensuring the authenticity and integrity of the invoice.
It should be emphasized that the use of electronic invoice transmission requires prior approval by the recipient for this method of transmitting this document. On the other hand, if the acceptance is withdrawn, the invoice issuer loses the right to send the invoice receipt from the day following the day on which he receives the notification from the recipient about the withdrawal of the acceptance. Due to the fact. that the process of preparing data, checking them and finally issuing invoices may in some companies, e.g. due to the significant degree of automation of these activities, make it difficult or impossible to quickly take into account the withdrawal of acceptance for electronic invoicing, the parties may decide on a different date for the loss of the right to send electronic invoices in in the event of withdrawal of the acceptance, as long as it is not longer than 30 days.
Therefore, the parties to the transaction must agree on the method of sending invoices in electronic form due to the need to meet technical requirements (e.g. appropriate software or electronic accounting) and organizational requirements, both on the part of the supplier and the recipient, so as to ensure correct method of storing invoices.
To sum up, it should be stated that, as a rule, the Company will be able to receive invoices from its contractors sent by e-mail in the format specified in the application without using a secure electronic signature. However, the condition for the use of electronic transmission of invoices will be that the taxpayers making such transmission guarantee the authenticity of the origin and integrity of the content of invoices, and not only prior approval of this method of sending invoices by the recipient of the invoice. It should also be noted that the Applicant will be obliged to store the invoices received, broken down into accounting periods, in any way ensuring the authenticity of origin, integrity of the content and legibility of these invoices from the moment of their issuance until the expiry of the tax liability limitation period, easy to find them and to the tax authority or authority fiscal control upon request, in accordance with separate regulations, immediate access to invoices. Therefore, the right to reduce the output tax will depend on the fulfillment of all conditions for invoices sent in electronic form.
In view of the above, due to the fact that the local authority could not agree with the Applicant's position in full, it was indicated in the application that the only condition for using electronic invoice transmission is prior acceptance of this method of sending invoices by the invoice recipient - the Company's position should be considered incorrect .
Finally, it should be stated that the rulings of the Supreme Administrative Court cited in the content of the submitted application may not affect the assessment of the issue in question. It is indicated that the Constitution of the Republic of Poland, in its chapter III, specifies a closed catalog of sources of universally binding law. It does not provide such force for judicial decisions, including the judgments of administrative courts, as there is no system of judicial precedents in Poland. In connection with the above, without negating the aforementioned judgments, as a valuable source in the field of indicating directions for the interpretation of tax law norms, it should be noted that the binding force of judgments is limited to the cases in which they were issued. It also results from the content of Art. 153 of the Act of August 30, 2002, Law on proceedings before administrative courts (Journal of Laws No. 153, item 1270, as amended), which determines that the legal assessment and indications as to further proceedings expressed in the court's decision are binding in this case the court and the authority whose action or inactivity was the subject of the appeal. Therefore, court judgments are issued in specific cases and concern only those cases in which they were issued. It should also be emphasized that the cited judgments were issued in a different legal status, both at the national and EU level.
Finally, it should be pointed out that the assessment of the correctness of the applied method (system) of sending invoices in electronic form and the fulfillment of the conditions for ensuring the authenticity of origin and integrity of the content of sent invoices requires specialist knowledge. Therefore, this assessment will be possible for the competent tax authority or the tax inspection authority in the course of a tax or fiscal inspection, because the procedure for issuing an individual interpretation, pursuant to Art. 14b § 1 of the Tax Ordinance Act, it is based solely on the interpretation of tax law. These provisions - as indicated above - do not specify specific technical requirements in this respect, so any technical solution, as long as it guarantees compliance with tax law requirements, will be correct. It is also emphasized that the local authority, when issuing interpretations, does not have the appropriate tools, including those specified in Section IV of the Tax Ordinance Act, enabling the conduct of proceedings during which it could obtain specialist knowledge.
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 Gdańsk, Al. Zwycięstwa 16/17, 80-219 Gdańsk, 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 - Art. 52 § 3 of the Act of August 30, 2002, Law on Proceedings Before Administrative Courts. A complaint to the Provincial Administrative Court is lodged (in two copies of Art. 47 of the above-mentionedof the Act) within thirty days from the date of delivery of the authority's response to the summons to remedy the infringement of the law, and if the authority has not responded to the summons, within sixty days from the date of submitting the summons (Article 53 § 2 of the abovementioned Act).
The complaint is submitted 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: Director of the Tax Chamber in Bydgoszcz, National Tax Information Office in Toruń, ul. St. Jakuba 20, 87-100 Toruń.
Director of the Tax Chamber in Bydgoszcz
