2026-02-12
KSeF and foreign entities: when the use of a Polish VAT number triggers mandatory e-invoicing
The introduction of the mandatory Polish e-invoicing system (Krajowy System e-Faktur – KSeF) as of 1 February 2026 will significantly change VAT invoicing rules, i.a. transactions involving foreign entities. One of the key factors determining whether mandatory KSeF applies is whether a foreign counterparty has a fixed establishment (FE) in Poland. If it is lacking on the seller’s side, then he may issue and send invoices outside KSeF (e.g. via e-mail, PDF). If the seller is subject to KSeF yet his buyer is not (lacking seat/FE in Poland), then the seller must issue the invoice via KSeF, yet simultaneously send it to his buyer in the old-fashioned way.
The concept of a FE itself has not changed. It has long been part of the VAT system and has been extensively addressed in the European case law. What has changed is the practical relevance of FE in the KSeF environment. The latest tax authorities’ explanatory notes (issued on January 28th) introduce certain legal assumptions as to whether the seller may assume the invoice exchange via KSeF to be sufficient (i.e. no separate e-mails/PDF’s needed).
According to the explanatory notes, a Polish supplier is not required to carry out an in-depth assessment of whether a foreign customer actually has a FE in Poland in a substantive VAT sense. For the purposes of determining the correct invoicing method, the supplier may rely on formal and objectively verifiable criteria.
In this context, particular importance is attached to the use of a Polish VAT identification number by the foreign buyer. The mere allocation of a Polish VAT number does not, in itself, determine the existence of a FE. However, where a foreign counterparty (i) uses a Polish VAT number in a specific transaction yet (ii) does not provide the supplier with a statement confirming the lack of a Polish FE involved in that transaction, the Polish supplier may assume that such FE exists and is involved. As a result, the invoice may be issued exclusively via KSeF, with no obligation on the seller’s side to make it available to the buyer outside the system.
This presumption is procedural in nature and is intended to protect the Polish supplier when selecting the appropriate invoicing model. It does not determine whether a FE actually, nor does it conclusively qualify the foreign entity’s structure for VAT purposes. Nevertheless, the absence of a statement from the foreign B2B-buyer operates to its disadvantage, regardless of whether its presence in Poland is operational or purely auxiliary.
The explanatory notes further clarify that the mere existence of an office, branch or administrative facilities in Poland does not automatically give rise to a FE, provided that such structures do not actually participate in the supply of goods or the provision of services. The autonomous nature of the FE concept also means that the existence of a “permanent establishment” for corporate income tax purposes, or capital links with Polish entities, is not decisive for VAT purposes.
From the perspective of Polish suppliers, this approach increases legal certainty and stabilises invoicing processes by removing the need for a detailed, case-by-case verification of the foreign counterparty’s status. However, for foreign entities holding and using a Polish VAT number, it means that information relating to the existence or non-existence of a fixed establishment must be actively managed in relations with Polish suppliers. The absence of appropriate procedures and failure to submit no-FE statements may result in invoices being issued solely through KSeF.
In this sense, the explanatory notes give the concept of a fixed establishment a distinctly practical dimension. In the KSeF environment, using a Polish VAT number without an appropriate statement may result in a transaction being brought within the KSeF regime, regardless of the foreign entity’s actual operating model.
In practice, this requires foreign companies to consciously manage the risks associated with having a potential fixed establishment in Poland and to align their internal procedures with the requirements of KSeF. This includes, in particular, reviewing the operating model from an FE perspective, preparing and using no-FE statements or statements confirming the lack of FE involvement in specific transactions, and properly structuring invoicing rules and communication with Polish counterparties. In the worst-case-scenario, they might lose access to their Polish purchase invoices, which in turn could cause issues with crucial payments (e.g. energy).
See other articles
The Act of 29 May 2026 amending the Polish Tax Ordinance and certain other acts, signed by the President of Poland, introduces significant changes to the Polish rules on reporting tax schemes, commonly referred to as MDR, or Mandatory Disclosure Rules. The new MDR provisions are expected to enter into force on 1 October 2026 and will substantially narrow the scope of obligations which, since 2019, have been one of the more demanding elements of tax compliance in Poland.
Tax proceedings in Poland should not be a process in which only the tax authority decides which facts will be examined and which evidence will be taken into account. Under the Polish Tax Ordinance Act, taxpayers have the right to actively participate in proceedings, including the right to submit their own requests for evidence. In practice, however, not every piece of evidence proposed by a taxpayer will be admitted. When can the tax authority refuse an evidentiary request, and what options are available to taxpayers in such situations?
Determining when a VAT liability arises in relation to services remains one of the more challenging issues in practice under Polish VAT law. Although Article 19a(1) of the Polish VAT Act clearly states that VAT becomes due when a service is performed, establishing when a service is actually “performed” sometimes requires a case-by-case assessment of the contractual model and the underlying commercial reality. Recent Polish judgment by the Supreme Administrative Court of 31 March 2026 (I FSK 1353/23) provides important clarification in the context of IT services.
As the Polish National e-Invoicing System (KSeF) becomes more widely used, businesses are increasingly encountering a practical issue known as the “double document circulation.” This occurs when the structured invoice stored in KSeF (XML) differs from the PDF visualization sent to the customer, for example by email or through a customer portal.
On 11 February, the EU General Court (Case T-689/24) delivered an important judgment in a “Polish case” on the moment of input VAT deduction. The ruling may have far-reaching consequences for Polish businesses and the way VAT is settled in Poland.
Invoice Issued Outside KSeF and Tax-Deductible Costs. Key Position of the Polish tax administration.
Individual tax ruling of 9 January 2026, ref. 0111-KDIB1-3.4010.714.2025.2.JG In an individual tax ruling dated 9 January 2026, the Director of the Polish National Revenue Information (KIS) addressed an issue that has raised significant practical concerns in the context of the implementation of the National e-Invoicing System (KSeF). The key question was whether an expense documented by an invoice issued outside the KSeF-system may be treated as a tax-deductible cost for the purposes of Polish corporate income tax (CIT).
The introduction of the mandatory Polish e-invoicing system (Krajowy System e-Faktur – KSeF) as of 1 February 2026 will significantly change VAT invoicing rules, i.a. transactions involving foreign entities. One of the key factors determining whether mandatory KSeF applies is whether a foreign counterparty has a fixed establishment (FE) in Poland. If it is lacking on the seller’s side, then he may issue and send invoices outside KSeF (e.g. via e-mail, PDF). If the seller is subject to KSeF yet his buyer is not (lacking seat/FE in Poland), then the seller must issue the invoice via KSeF, yet simultaneously send it to his buyer in the old-fashioned way.
The general tax ruling issued by the Polish Minister of Finance and Economy on 27th of November 2025 addresses the issue of land, buildings and structures being deemed as “related to business activity”. It is one of the most significant documents in recent years in the area of property taxation. Its importance goes well beyond a purely technical explanation of statutory provisions. At its core, it touches on a fundamental and long-running dispute between taxpayers and tax authorities: where the line should be drawn between mere ownership of real estate and its use for business purposes.
Even though penalties for issuing invoices outside Poland’s National e-Invoicing System (KSeF) have been deferred until 1 January 2027, the real headache may come sooner.
The Court held that, in certain circumstances, contractual penalties for delays may qualify as tax-deductible in Polish CIT. The case concerned a property developer unable to hand over apartments to clients in time, due to delays caused by the general contractor. The clients charged contractual penalties, which the developer has paid and qualified as tax-deductible costs. The Polish tax authority (KIS) argued that any penalty for non-performance or improper performance is excluded from tax costs under Art. 16(1)(22) of the Polish CIT Act. The Polish Supreme Administrative Court (NSA) disagreed.