Issuing invoices without an electronic signature and outside EDI
Individual ruling of 17.01.2011, file ref. ITPP3 / 443-169a / 10 / JK, Director of the Tax Chamber in Bydgoszcz
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 Company's position presented in the application of 23 September 2010 (date of receipt on October 19, 2010) for an individual interpretation of tax law provisions regarding value added tax in the scope of receiving invoices by printing them from PDF files sent by e-mail - is incorrect.
On October 19, 2010, an application was filed for an individual interpretation of tax law provisions regarding value added tax in the scope of receiving invoices by printing them from PDF files sent by e-mail.
The following future event is presented in this proposal.
As part of its insurance activities, the Company carries out insurance activities related to offering and providing protection against the risk of the consequences of random events. The company concludes or contracts to conclude insurance contracts to eligible insurance intermediaries who meet the conditions for recognizing them as agents or brokers. In order to obtain revenues from insurance contracts, the Company uses the services of insurance intermediaries - brokers and insurance agents. Intermediaries, both agents and brokers, in exchange for the agreed commission exempt from VAT, perform a number of factual and legal activities aimed at concluding insurance contracts by the Company. The company places emphasis on timely commission payment and proper documentation of tax deductible costs.
The applicant intends to introduce a solution whereby the insurance intermediary will issue a VAT invoice based on the data obtained from the Company (commission statement) and at the same time send it in the form of a PDF file to the e-mail (e-mail) and send it to the recipient. The company, as the recipient of the invoice, could therefore receive it immediately after being issued in the form of a PDF file. The invoice sent as a PDF file would then be printed by the Company and stored in paper form for the period required by law. The company would act as the recipient of such invoices.
The following question was therefore asked.
Is it correct for VAT purposes to receive invoices by printing them from PDF files sent by e-mail ...
In the opinion of the Interested Party, in the described case, the receipt of invoices by the Company will be effective for VAT purposes, ie the Company will be entitled to recognize them as properly issued, in accordance with the provisions of Art. 106 of the Value Added Tax Act and the executive regulation to this act.
The company indicates that the provisions of the VAT Act do not define the concept of receive, which means that in order to determine the meaning of this term, its understanding in the common language should be taken into account. According to the PWN Dictionary of Polish Language, Wydawnictwo Naukowe PWN, Warsaw 1999: to receive "(the dictionary gives the meaning of the imperfective verb to receive") means to become the recipient of something, to receive something as a gift or in exchange for something. In this sense, the Company will receive an invoice both in the case of a PDF file sent to it by e-mail, as well as by collecting the invoice from the printer located at its headquarters, on which it will be printed on the initiative of the invoice issuer. Therefore, receipt of an invoice may be done by any means, including sending a PDF file by e-mail. This understanding is also indicated by the fact that the legislator does not refer in any way to the activities that the invoice issuer or any other entity should perform in order for the recipient to receive the invoice. In other words, it doesn't say how the invoice will be delivered to the recipient. In particular, the provisions of the VAT Act do not require the invoice to be delivered "within the meaning of the Tax Ordinance. The VAT Act does not use the term of delivery of an invoice, but the date of receipt of an invoice. The above means that the method / means by which the invoice is delivered to the recipient is indifferent from the point of view of the provisions of the VAT Act. It can be a personal handing, sending by post or via a courier company or sending by e-mail. the recipient of the invoice.
In the opinion of the Applicant, the presented solution is not contrary to 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), hereinafter referred to as the regulation on electronic invoices, as these invoices will be paper documents and not electronic. In this form, after printing, they will be stored by the Company and made available to the tax authorities upon their request. Similarly, the invoice issuer will store them and make them available to the authorities in paper form. However, the above regulation is applicable if the entire invoicing process is performed electronically, i.e. the invoice does not have a paper form, is issued, sent, stored and made available electronically, and only when requested by the tax authorities, the e-invoice content is printed.However, this printout does not have the value of an invoice as it is only in electronic form. In the considered future event, only invoices would be delivered electronically.
In the opinion of the Company, there would be no circumvention of the provisions of the law, as there are no provisions regulating the method of delivering invoices to the recipient in paper form. In connection with the above, the receipt of VAT invoices by the Company by printing them from a PDF file sent to it by e-mail should be considered effective for the purposes of VAT.
In the light of the applicable legal status, the Applicant's position on the legal assessment of the presented future event is considered incorrect.
The applicant indicates that the subject of the application is to resolve the issue of correct invoicing by means of paper invoices, as the Company intends to receive invoices in the form of a PDF file via e-mail, which will then be printed and stored in this form. However, due to the change in the legal status that took place on January 1, 2011, it should be stated that due to the fact that the Company intends to send documents by electronic means, contrary to its assertion, the provisions on sending invoices in the form of electronic.
At the outset, it should be noted that until December 31, 2010, the detailed rules for sending VAT invoices in electronic form were regulated by the provisions of 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 available to the tax authority or to the tax inspection authority of these invoices (Journal of Laws No. 133, item 1119). Pursuant to the provisions of § 3 sec. 1-3 of the above-mentioned regulation, invoices could be sent in electronic form, provided that the recipient of the invoice had previously accepted this form. Moreover, pursuant to § 4 of the above-mentioned of the Regulation, invoices could be sent in electronic form, provided that the authenticity of their origin and the integrity of their content were guaranteed by a secure electronic signature within the meaning of Art. 3 point 2 of the Act of 18 September 2001 on electronic signature (Journal of Laws No. 130, item 1450, as amended), verified by means of a valid qualified certificate, or by electronic data exchange (EDI) in accordance with the agreement on European model for the exchange of electronic data, if the concluded contract relating to this exchange provided for the application of procedures guaranteeing the authenticity of the origin of the invoice and data integrity.
Therefore, in the light of the regulations in force until the end of 2010, it was permissible to deliver the invoice to the contractor by electronic means, however, in compliance with the requirements set out in the above-mentioned regulation, in particular regarding the use of electronic signature or electronic data exchange system (EDI). Only then were invoices introduced into legal circulation, which had minor legal consequences, in particular with regard to the right to deduct input tax charged to the recipient of such an invoice. Therefore, taking into account the above-mentioned provisions, it should be stated that, in the legal status until 31 December 2010, the proposed invoicing method, without the use of a secure electronic signature or electronic data exchange system (EDI), would not meet the conditions set out in the provisions of the tax law.
On January 1, 2011, the provisions of the tax law entered into force, which changed the current system of invoicing the turnover for VAT purposes, including the sending of invoices. Changes in the provisions of domestic law resulted from the need to implement EU regulations introduced by Council Directive 2010/45 / EU amending Directive 2006/112 / EC on the common system of value added tax with regard to the provisions on invoicing, which is intended, inter alia, to liberalize the current standards for sending electronic invoices so that paper invoices and electronic invoices are treated in the same way.
It should be noted that pursuant to § 19 para. 1 of 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. 212, item 1337, as amended), invoices and corrective invoices are issued at least in two copies, the original being received by the buyer and the copy 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 documentation (§ 19 (3) of the aforementioned regulation).
Therefore, in connection with the above, in the situation of submitting invoices by electronic means, the provisions 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 tax inspection authority (Journal of Laws No. No. 249, item 1661), hereinafter referred to as the regulation, which entered into force on 1 January 2011 and apply to the situation presented in the application for an individual interpretation.
Pursuant to the provisions of § 3 sec. 1 - 3 of 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.
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 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.
Therefore, the above-mentioned provisions of the regulation define the method and conditions for sending invoices in electronic form. Currently, the taxpayer is not obliged to use the previously specified technologies for sending invoices in electronic form (secure electronic signature and electronic data exchange system (EDI). The provisions of the regulation introduce the freedom of electronic format in which an electronic invoice may be sent, with the possibility of sending invoices in this form. issued in paper form and sent by e-mail. It should also be noted that, as a rule, invoices may be sent in electronic form, provided the authenticity of the origin and integrity of the invoice content is ensured. Authenticity of origin is certainty as to the identity of the supplier or service provider or to the issuer of the invoice, and the integrity of the content, means that the data that should be included in the invoice has not been changed in the invoice. a valid 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 in the current legal state, the Company will be able to receive invoices sent by e-mail from its contractors without the use of a secure electronic signature or electronic data exchange system (EDI), provided that taxpayers guarantee the authenticity of the origin and integrity of the content of invoices and prior approval of this how invoices are sent by the invoice recipient. However, it should be noted that due to the fact that the Applicant states in the justification of his position that there are no provisions regulating the method of delivering (sending) invoices by electronic means, this position of the Company should be considered incorrect.
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 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 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