How should the so-called non-transactional WDT be documented?
The movement of the taxpayer’s own goods (belonging to the enterprise) from the territory of Poland to the territory of another EU member state shall be considered an intra-Community supply of goods (hereinafter: “WDT”). The above-mentioned own goods shall be understood as such goods which have been manufactured, extracted, purchased, including as part of intra-Community acquisition of goods, by a taxpayer in the territory of Poland within the framework of his business activity, or imported into the territory of Poland as part of importation of goods, if they are to serve the business activity of the taxpayer[1].
In the case of the movement of own goods, no bilateral transaction takes place – the right to dispose of the goods as owner is not transferred to another entity, but remains with the taxpayer, who exclusively moves his goods between two EU member states. Accordingly, in practice, the movement of own goods is referred to as a so-called non-transitory WDT.
An issue that may therefore be questionable is whether the taxpayer is required to issue an invoice in connection with such a movement (analogous to WDT to another entity).
The wording of the VAT Law is not clear
It should be noted that the provisions of the VAT Law do not explicitly regulate whether a transfer of own goods is subject to documentation by means of an invoice.
However, it follows from the provisions of the VAT Law[2] that the taxpayer is obliged to issue an invoice documenting the sale, which is understood to be, among other things, an intra-Community supply of goods made to another taxpayer of VAT, value added tax or tax of a similar nature, or to a legal entity that is not a taxpayer.
In addition, an intra-Community supply of goods made to entities other than those indicated above[3] is also required to be documented with an invoice.
In the opinion of the Director of National Tax Information, invoices should be issued
In accordance with the position of the Director of National Tax Information presented in interpretations of tax law regulations, a taxpayer who transfers own goods acts in a double role – not only as a supplier of goods being a VAT taxpayer in Poland, but also as a purchaser of goods transferred to the territory of another EU member state, where he is registered as a VAT taxpayer. Therefore, according to the Director of National Fiscal Information, the movement of own goods considered as WDT needs to be documented by issuing an invoice.
This was stated by the Director of Tax Information, among others, in individual interpretations dated November 14, 2022, 0111-KDIB3-3.4012.389.2022.2.PJ, July 8, 2021, 0112-KDIL1-3.4012.153.2021.2.MR and April 2, 2021, 0114-KDIP1-2.4012.56.2021.1.JŻ.
The position taken by the Director of National Tax Information seems controversial, given the specifics of the issue at hand, where the same entity is involved on both sides of the WDT (so the invoice would be issued to “itself”).
However, the provisions of the VAT Directive are clear
It should be noted, however, that it is quite clear from the provisions of the VAT Directive[4] that the movement of own goods is also covered by the obligation to document with an invoice. Pursuant to Article 220(1)(3) of the VAT Directive, every taxpayer shall satisfy himself that an invoice has been issued by him, by the purchaser or customer, or in his name and on his behalf, by a third party in the case of supplies of goods made under the conditions provided for in Article 138 of the same Directive. Article 138(2)(c) of the VAT Directive designates the supply of goods consisting in the movement of goods to another Member State.
Therefore, despite the rather unclear national regulations, as well as the debatable position of the interpreting authorities, based on the wording of the EU regulations, one should nevertheless lean towards the approach that Polish VAT taxpayers are also required to issue invoices when making transfers of their own goods.
What about invoices issued in KSeF?
Although the obligation to use the National e-Invoice System (hereafter: “KSeF”) will not appear until 2026, it is already worthwhile to look into the issue of documenting the movement of own goods using this system.
It should be noted that the obligation to issue structured invoices will apply to taxpayers who have a seat of economic activity or a fixed place of business activity in the territory of Poland, provided that this fixed place will be involved in the supply of goods or provision of services for which the invoice was issued[5].
Also in the case of the mandatory KSeF, the legislator did not directly address the obligation to document with an invoice the movement of own goods. Therefore, the existing regulations will apply in this regard (unless changes are made in this regard).
This would mean, therefore, that the obligation to document by means of structured invoices, i.e. invoices issued using KSeF, will also cover the movement of own goods, provided that the movement is made by a taxpayer who has a seat of economic activity or a permanent place of business activity in the territory of Poland, which place will be involved in this supply.
The above position is confirmed in an individual interpretation by the Director of National Tax Information dated December 21, 2023, ref. 0114-KDIP1-2.4012.484.2023.2.GK.
[1] Article 13(3) of the Law on Value Added Tax of March 11, 2004 (hereinafter: the “VAT Law”).
[2] Article 106b(1)(1) of the VAT Law.
[3] Article 106b(1)(3) of the VAT Law.
[4] Council Directive 2006/112/EC of November 28, 2006 on the common system of value added tax (hereinafter the “VAT Directive”).
[5] Article 106ga(1) and (2)(1) and (2) of the VAT Law, as in effect from July 1, 2024.