Tax obligation for an advance invoice

As from 1st January 2022  the art. 106i Polish VAT Act has been changed. Now, the taxpayer has a right to issue an invoice maximum 60 days preceding the delivery of goods, performance of  services or receipt of all or part of a payment (earlier it was 30 days).

Generally, in accordance with the art. 19a Polish VAT Act, the tax obligation arises when the goods are delivered or the services are performed.  However, if all or part of the payment is received before this date, the tax point arises upon its receipt in relation to the amount of advance payment.

This leads to the question, when does the tax obligation arise for an advance invoice issued maximum 60 days before receiving the advance payment? Regardless of the fact that the taxpayer issued the advance payment invoice before the receipt of the advance payment, the tax obligation arose in a date when the taxpayer received the advance payment.

For example, the taxpayer issued an advance payment invoice on 25th April 2022. He received the money on 18th June 2022. Based on the above rules, the VAT obligation arose on 18th June 2022.

If the taxpayer issues an advance invoice but does not receive the payment within 60 day, it can be assumed that this is the so-called “empty invoice”. Thus, the information contained in such a document is not factually correct and empty invoices are not included in the JPK_V7 file. This was confirmed by a few court judgements e.g. judgment of the Supreme Administrative Court (NSA) of 4 December 2009, file ref. act I FSK 1859/08, judgement of  the Supreme Administrative Court (NSA) of 19 January 2010 r., file ref. act I FSK 1759/08.

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