The National e-Invoicing System (KSeF) is soon to become the mandatory method of documenting sales by companies. However, entrepreneurs raise doubts about the wide range of data collected by the system and concerns about the violation of trade secrets.
Tax Tightening, Mandatory KSeF
From January 1, 2022, entrepreneurs are able to voluntarily issue sales documents through the structured invoice system of the National e-Invoice System. The KSeF was gradually being introduced as mandatory for individual sectors, to become mandatory for all taxpayers issuing invoices by 2024. However, many flaws are emerging during the implementation stage, hence the deadline for the mandatory KSeF has been moved several times. According to the latest announcements from the Ministry of Finance, it will become mandatory from 1 February 2026 for firms whose annual revenues exceed 200 million zł, and for the rest – from April 1, 2026. The aim of KSeF is to tighten the tax system in Poland.
Wide Range of Disclosed Data
Under Article 106e of the VAT Act, an invoice should include: the date of issue, name and surname, name of the taxpayer and purchaser of the goods or service, their addresses, delivery date, name (type) of goods or service, their quantity, unit price, amounts of discounts, and in certain cases even such detailed information as the date a new transport means is admitted for use, vehicle mileage and number of working hours of its use.
These data will be accessible to enforcement bodies, bailiffs, and individuals designated by these entities, as well as other state bodies, thanks to the authorization granted in Article 35(3)(1)(f) of the National Revenue Administration Act.
Business Secrecy
According to Article. 11(2) of the Act on Counteracting Unfair Competition, business secrets include organizational information of the enterprise or other information with economic value that are not generally known or readily available to those usually dealing with such information. Disclosing this information constitutes an act of unfair competition, which is subject to a fine, restriction of liberty, or imprisonment up to two years.
National e-Invoice System. Entrepreneurs Ask About Business Secrets
Fearing for this business secret, also known as a trade secret, entrepreneurs started to file complaints with the Ombudsman. They concern a wide range of data collected and made available by KSeF about the transaction documented by the invoice.
The Ombudsman’s office intervened in mid-May 2024 by writing a letter on this matter to the Head of the National Revenue Administration. The Ombudsman states that according to the information provided by the Ministry of Finance, the audit carried out against the National e-Invoice System revealed numerous irregularities. They included poorly designed IT architecture that affects the system’s stability and security. Particularly in the light of these irregularities, entrepreneurs’ concerns seem justified.
Freedom of Economic Activity
The Ombudsman’s office expressed concerns that entrepreneurs’ complaints are significant from the point of view of the freedom of economic activity guaranteed by the Polish Constitution and related trade secrets of the enterprise. Also important is the issue of entrepreneurs’ rights to privacy and data protection, also guaranteed by the Constitution.
What Do Entrepreneurs Say?
In a statement on December 23, 2022, the Union of Entrepreneurs and Employers presented the position of companies raising the issue that the burden (including the cost) of implementing KSeF will fall on them, which will pose a challenge especially for micro, small, and medium-sized enterprises. Moreover, this will be one of the most heavily loaded IT systems in Poland. Any failure may negatively affect the activity of Polish companies.
The Supreme Court in the judgment of October 3, 2000, ruled that the definition of commercial information which can be protected by the secrecy of the enterprise includes all useful information for running a business not necessarily directly related to the production cycle. Such information might include a list of contractors, commercial correspondence, or pricing. It turns out that most of these information is to be collected in KSeF.
Author: Robert Nogacki, legal counsel, managing partner, Skarbiec Law Firm specialising in legal, tax, and strategic consulting for entrepreneurs.
Source: https://managerplus.pl/obowiazkowy-ksef-przedsiebiorcy-pytaja-o-naruszenie-tajemnicy-handlowej-21380
