The right to reduce the amount of tax due by the amount of input tax from VAT invoices and corrective VAT invoices

Letter of 19 November 2010, Tax Chamber in Warsaw IPPP2-443-631 / 10-4 / KG

The right to reduce the amount of tax due by the amount of input tax from VAT invoices and corrective VAT invoices received by e-mail or by fax, which are not electronic invoices.

Individual interpretation

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 No. 112, item 770, as amended). The Director of the Tax Chamber in Warsaw, acting on behalf of the Minister of Finance, states that the Applicant's position presented in the application from on August 19, 2010 (date of receipt on August 26, 2010) supplemented by the letter of September 16, 2010 (date of receipt on September 21, 2010, date of postage on September 17, 2010), being a response to the request of the Authority from on September 9, 2010, No.IPPP2-443-631 / 10-2 / KG (effectively served on September 14, 2010) for a written interpretation of the tax law regarding value added tax in the scope of the right to deduct input tax from VAT invoices and corrective VAT invoices received electronically or by fax, which are not invoices in electronic form - it is incorrect.

Justification

On August 26, 2010, an application was submitted for a written interpretation of the tax law in an individual case concerning value added tax in the scope of the right to deduct input tax from VAT invoices and corrective VAT invoices received by e-mail or by fax, which are not invoices in electronic form.

The said application was supplemented by a letter of September 16, 2010 (received on September 21, 2010, posting on September 17, 2010), being a response to the request of the Authority of September 9, 2010, no. IPPP2-443-631 / 10-2 / KG (effectively served on September 14, 2010). The application was supplemented within the statutory period.

The following future event is presented in the present application:

The applicant, as part of the car dealer's activities, incl. coordinates the repairs of cars belonging to companies associated with B., carried out throughout the country in authorized workshops. Individual service centers charge the Company for repairs with VAT invoices. On the basis of the invoices received, the Company charges the companies to which the repaired cars belong with a VAT invoice issued in the periods specified in the contract (monthly). The number of invoices received from individual websites is very large. Each invoice is checked by the Company, which issues the authorization, thus confirming the performance of the service in accordance with the contract concluded with the company. The authorization procedure sometimes takes quite a long time (disputes - rates, are agreed between the Company and the service performing the repair). Often, granting authorization is associated with the need to issue an invoice correcting the original invoice. Due to the incorrect operation of the post office, the location of services throughout the country and for other reasons, invoices and corrective invoices are received even several weeks or months after the economic event that resulted in the issuance of these documents.

The Company's employees may register an invoice or a correcting invoice in the system only after receiving the original of such document. Therefore, the Company is considering whether it would be possible in the future, based on the provisions of Art. 218 and 219 of Directive 2006/112 / EC of the Council of 28 November 2006 on the common system of value added tax (Journal of Laws UE L.2006.347; hereinafter referred to as Directive 2006/112 / EC), departure from the current practice in the scope presented above. That is, whether it is possible for the Company to accept the principle that a document - a VAT invoice, VAT correction invoice - received in paper form by electronic means (via fax or e-mail), but not being an electronic invoice with an electronic signature, is a document authorizing the Company to demonstrate input tax in the VAT register and to be deducted from the output tax resulting from such input tax document.

The following question was therefore asked:

Is it correct to include in the VAT settlement the amount of input tax when purchasing goods and services on the basis of invoices and corrective invoices received by e-mail or by fax, which are not electronic invoices with an electronic signature?

According to the Applicant, the method of sending the invoice and the correcting invoice does not affect the right to deduct input tax.

There is no provision of the VAT Act on the method of sending these documents. Art. 106 sec. 1 of the Act does not comment on the possible 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 details of the taxpayer and buyer, subject to paragraph 2. 2, 4 and 5 and article. 119 paragraph. 10 and art. 120 paragraph 16. The legislator does not comment in this provision as to the form of the invoice. The use of the term "issuing" by the legislator does not limit the scope of issuing invoices only to the paper form. In addition, there may be two situations in trade: one in which the VAT taxpayer prepares and sends to the buyer invoices in electronic form, which are then stored by both parties in the same form (without transferring their content to a paper document) and the second situation in which the taxpayer prepares and sends the invoice in a non-paper form, but both parties to the transaction are printed and stored in paper form and not in electronic form.

Therefore, the Applicant has the right to deduct the tax charged in the month of receipt of the invoice sent in any way, including in particular by fax or e-mail.

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. 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), 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.

With the above According to the regulations, taxpayers should issue invoices documenting taxable activities, if they perform such. 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 word issue should be understood as: write out, fill in, issue, e.g. make a check, bill, document.

Thus, the term "issue" means the preparation of a document, in this case an invoice, for the use of the contractor - the recipient of the goods or service, and the delivery (delivery) of the invoice in question to the contractor. The preparation of such an invoice consists in including the necessary data in a document with this name. It should be noted that the basic role of an invoice, in terms of VAT, is to enable the buyer to document purchases made in order to exercise the right to deduct input tax resulting from these invoices (cf. Article 86 (2) of the VAT Act).

In the case of invoices issued in paper form and sent in electronic form, the legislator deliberately did not regulate this procedure, as it does not accept it (such a possibility is provided for by the provisions of the Directives) as a solution that does not guarantee the authenticity of the origin and integrity of the content of VAT invoices.

Therefore, the condition for using legal conclusions in the judgment in question has not been met.

Pursuant to Art. 218 of Directive 2006/112 / EC of the Council of 28 November 2006 on the common system of value added tax (Journal of Laws UE L No. 347 p. 1 as amended), hereinafter referred to as the Directive, for the purposes of this Directive Member States shall accept as invoices documents or notes in paper form or in electronic form that meet the conditions set out in this Chapter.

Pursuant to Art. 232 of the Directive in the version in force until 10 August 2010, invoices issued in accordance with the provisions of section 2 may be sent in paper form or, subject to the recipient's acceptance, may be sent or made available by electronic means.

However, pursuant to Art. 233 paragraph. 1 of the Directive, in the version in force until 10 August 2010, Member States accept invoices sent or made available electronically, provided that the authenticity of the origin of the invoices and the integrity of their content are guaranteed by means of an advanced electronic signature or by means of electronic data interchange (EDI). At the same time, according to this provision, invoices may also be sent or made available electronically using other methods, subject to their acceptance by the Member State or Member States concerned.

It follows from the above regulations that other methods of sending or making available by electronic means invoices require absolute approval of the Member State, and this approval should be expressed directly in national regulations and not implied.

Considering the above-mentioned provisions, it should be stated that the provisions of the Directive stipulate that invoices are to be issued only in paper or electronic form. Moreover, it should be noted that the provision of Art. 218 refers to the entire directive and not only to individual sections or chapters of the Directive, therefore, unless explicitly stated, all regulations regarding invoices in the Directive refer to the invoices listed in Art. 218, that is to paper or electronic invoices, thus, the regulations regarding their sending also apply to electronic and paper invoices. Therefore, when an invoice is sent in paper form, it is necessary to first prepare it in this form.

It is worth noting here that only the amended provisions of Art. 232 and 233 of the directives in force since 11 August 2010 liberalize the issue of electronic invoices. And so, in accordance with the current wording of the above-mentioned regulations, the use of an electronic invoice is subject to the recipient's approval.

The authenticity of the origin, the integrity of the content and the legibility of the invoice, regardless of whether it is issued in paper or electronic form, is ensured from the moment the invoice is issued until the end of its storage period.

Each taxpayer determines how to ensure the authenticity of the origin, integrity of the content and legibility of the invoice. This can be ensured with any business checks that establish a reliable audit trail between the invoice and the delivery of goods or the provision of services.

"Authenticity of origin" means certainty as to the identity of the supplier or service provider or the issuer of the invoice.

"Content integrity" means that the information required by this Directive has not been altered in the invoice.

In addition to using the types of business control described in paragraph 1 below are examples of technologies to ensure the authenticity of origin and integrity of the content of an electronic invoice:

1. 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, on the basis of a qualified certificate and created by means of a secure signature-creation device within the meaning of Art. 2 points 6 and 10 of Directive 1999/93 / EC;
2. electronic data interchange (EDI) as defined in Art. 2 of Annex 1 to 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.

Comparing the current wording of the provisions with those in force until August 10, 2010, it clearly shows that only the provisions in force from August 11, 2010 recognize as an invoice any document issued and sent electronically, which has been ensured the authenticity of origin, integrity of content and legibility. The taxpayer, by means of any business controls, makes the above-mentioned assurance. On the other hand, technologies based on advanced electronic signature and electronic data interchange (EDI) are only an example of the possible above-mentioned assurance. On a contrario basis, it should be stated that before August 11, 2010, only documents whose authenticity will be ensured by means of an advanced electronic signature or by means of electronic data interchange (EDI) should be considered as invoices issued in electronic form, unless the regulations of a given country allow for the use of other methods.

In addition, it should be noted that the Member States were obliged to adopt and publish, not later than by 31 December 2012, the laws, regulations and administrative provisions necessary to comply with the above-mentioned amendment of the directive. Member States apply these provisions from 1 January 2013 (Article 2 (1) of Council Directive 2010/45 / EU of 13 July 2010 amending Directive 2006/112 / EC on the common system of value added tax with regard to to the provisions on invoicing (Journal of Laws UE L No. 189 p. 1)). Thus, until 31 December 2012, Member States may only consider invoices issued in electronic form that are secured by the above-mentioned by methods, unless the regulations of a given country permit otherwise.

Detailed rules for issuing invoices are specified in the Regulation of the Minister of Finance of November 28, 2008 on tax refunds to certain taxpayers, issuing invoices, their storage and the list of goods and services to which the VAT exemption does not apply (Journal of Laws No. No. 212, item 1337, as amended). These rules apply to both invoices issued in paper and electronic form, the latter form requiring the fulfillment of additional conditions, which will be discussed later.

The provisions of § 19-21 of the above ordinance regulate the technical aspects related to the issuing and storage of invoices. Pursuant to § 19 para. 1 above regulations, 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 original invoice should contain the word ORIGINAL, and the copy of the invoice should contain the word COPY (§ 19 section 2). When the original is lost or damaged, at the request of the buyer, the seller may issue a duplicate invoice (§ 20 of the above-mentioned regulation).

According to the above-mentioned In accordance with the provision, the buyer should receive the "ORIGINAL" invoice. According to the application, the Applicant intends to receive invoices by e-mail or by fax. In such a case, the Applicant will not be issued an invoice, but will be sent by e-mail de facto a specimen of the invoice marked as "ORIGINAL" or a copy thereof, if sent by fax, which undoubtedly violates the norm of § 19 para. 1 above regulation.

Providing the buyer with an invoice via e-mail, although it may be considered a form of issuing an invoice, it cannot be considered as issuing a paper invoice. By providing the invoice via e-mail, the Party undoubtedly transmits the content of this document 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 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), because in accordance with § 1 point 1, this regulation specifies, inter alia, methods and conditions for issuing and sending invoices in electronic form.

Due to the specific nature of this type of invoice, the legislator ordered that a number of requirements not provided for by the regulations on paper invoices should be met when issuing them.

According to § 2 of the above-mentioned of the Regulation, invoices issued in electronic form shall be sent, including made available, in this form to the recipient and stored in this form using electronic devices for processing (including digital compression) and data storage, using wire, radio, optical teletransmission techniques or other electromagnetic means.

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 regulation of 14 July 2005 on issuing and sending invoices in electronic form. One of these conditions is set out in § 4 of this regulation and, in accordance with it, invoices may be issued, sent and stored in electronic form, provided that the authenticity of their origin and the integrity of their content will be guaranteed:

1. 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
2. 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.

In accordance with § 6 sec. 1 above Regulation on electronic invoices, invoices issued or received in electronic form are stored in the territory of the country in a way that allows, on request, in accordance with separate regulations, tax authorities or fiscal control authorities, immediate, full and continuous access by electronic means to these invoices, in particular, ensuring the possibility of documented collection and use of these invoices by these authorities, including their printing, as well as ensuring the legibility of these invoices, subject to paragraph 2. As it results from the above-mentioned provisions, the legislator decided that issued, sent and received and stored in electronic form invoices must at least have a guarantee of the unquestionable authenticity of the origin of these documents from the entity that issued the document and a guarantee of the integrity (non-infringement) of their content. The above implies the obligation provided for in § 4 point 1 of the discussed regulation to affix issued invoices with a secure electronic signature, verified with a special certificate.

As indicated above, in the present case we are not dealing with a paper transfer of an invoice, but with an electronic one, therefore all the requirements for such a transfer specified in the quoted regulation of the Minister of Finance of July 14, 2005 (Journal of Laws No.

On the basis of the regulations of both regulations referred to above, it can therefore be assumed that the first of the discussed regulations applies to both invoices issued in paper and electronic form. On the other hand, the second implementing act applies only to invoices issued in electronic form, containing in its regulations a number of requirements specific to this form of invoice.

Pursuant to Art. 86 sec. 1 of the quoted act, to the extent that the 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 Art. 86 sec. 2 point 1 of the quoted act, the amount of the input tax is, subject to para. 3-7: sum of the tax amounts specified in the invoices received by the taxpayer:

1. for the purchase of goods and services,
2. confirming prepayment (advance payment, deposit, installment), if they were related to the emergence of a tax obligation,
3. from the principal for the delivery of goods being the subject of the commission contract - taking into account the discounts specified in art. 29 sec. 4.

The right to reduce the amount of tax due arises - pursuant to art. 86 sec. 10 point 1 of the cited act - in the settlement for the period in which the taxpayer received an invoice or a customs document, subject to points 2-5 and sec. 11, 12, 16 and 18. If the taxpayer fails to reduce the amount of tax payable within the time limits specified in para. 10, may reduce the amount of tax payable in the tax return for one of the next two tax periods.

In the light of the above, it should be stated that the input tax for goods and services purchased in domestic trade (except for agricultural products and agricultural services purchased from a flat-rate farmer) results from invoices received by the taxpayer. At the same time, the right to deduct depends on the taxpayer's receipt of an invoice.

Sending invoices by electronic means (by e-mail or fax), although it may be considered a form of issuing an invoice, it cannot be considered as issuing an invoice in the form provided for by tax law.

As a consequence, invoices received by the Company by e-mail or fax will not constitute the basis for reducing the output tax by the input tax indicated therein, because, as already indicated, such invoices will not constitute documents referred to in Art. 106 sec. 1 of the quoted act, as they have not been introduced into legal circulation. Thus, they will not entitle to make the deduction referred to in Art. 86 sec. 1 and sec. 2 of the quoted act, within the time limits resulting from Art. 86 sec. 10 of the cited act.

Summing up, the Applicant's receipt of VAT invoices and corrective invoices sent by e-mail or fax, will not entitle him to deduct VAT resulting from these invoices, because these will only be information about the content of the invoice and not the original invoice that the Company should have for processing the right to deduct input tax. Therefore, the position of the Applicant should be considered incorrect.

The interpretation concerns the future event presented by the Applicant and the legal status in force on the date of issuing the interpretation. It should be noted that under Art. 14f § 1 of the Act of August 29, 1997 - Tax Ordinance (Journal of Laws of 2005 No. 8, item 60, as amended), an application for an individual interpretation is subject to a fee of PLN 40. This means that all applications that are received by the authorities from September 20, 2008are subject to a fee of PLN 40 Due to the fact that the Party paid a fee for issuing a written interpretation of tax law in the amount of PLN 75 on August 23, 2010, the difference in the amount of PLN 35 will be refunded in accordance with 14f § 2a of the Act - Ordinance tax, within 7 days from the date of completion of the proceedings on issuing the interpretation - to the bank account of the payer.

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 to be lodged with the Provincial Administrative Court in Warsaw, ul. Jasna 2/4, 00-013 Warsaw, after a prior written request from the authority that 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 August 30, 2002 - Law on proceedings before administrative courts - Journal of Laws No. 153, item 1270, as amended). A complaint to the Voivodship Administrative Court (in two copies - Art. 47 of the above-mentioned Act) shall be lodged 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 did not reply to the summons, within sixty days from the date of submitting the complaint. 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 Warsaw, National Tax Information Office in Płock, ul. 1 Maja 10, 09-402 Płock.

44206 Journal of Laws 2011.177.1054: Art. 86 sec. 1; art. 86 sec. 2 Journal of Laws 2011.68.360: § 19; § 21