2 June 2026

KSeF and the lack of SMPD (a permanent place of business)

The National E-Invoice System (KSEF) is gradually coming into effect on February 1st, 2026, and will gradually cover more taxpayers, which covers also a SMPD topic. Initially, from February 1st, 2026, the obligation to issue invoices will apply to the largest taxpayers (200 million PLN in annual VAT turnover), followed by other taxpayers from April 1st, 2026. Very small taxpayers (when monthly sales documented by invoices do not exceed 10,000 PLN) will be required to issue invoices from January 1st, 2027.

The legislator has introduced several exceptions to the obligation to use the KSeF (both issuing and receiving invoices).

Article 106ga, section 2 of the VAT Act, provides several exceptions that exclude the obligation to issue invoices using the KSeF:

• The taxpayer does not have a registered office or a permanent establishment in Poland;
• The taxpayer does not have a registered office, but has a fixed establishment in Poland, and this fixed establishment is not involved in the supply of goods or the provision of services;
• The taxpayer uses the special schemes specified in Chapters 7, 7a, and 9 of Section XII of the VAT Act;
• The taxpayer issues invoices to consumers (B2C);
• The taxpayer benefits from the subjective exemption for taxpayers established in another EU country (SME procedure);
• In specific cases specified by the Ministry of Finance in a regulation.

In turn, the obligation to receive structured invoices is exclusively defined in Article 106gb, paragraph 4 of the VAT Act:

• The place of supply is the territory of an EU country or a third country other than Poland;
• The taxpayer (buyer) does not have a registered office or a fixed establishment in Poland;
• The taxpayer (buyer) does not have a registered office, but has a fixed establishment in Poland, and this fixed establishment is not involved in the supply of goods or the provision of services;
• The taxpayer (buyer) benefits from the subjective exemption for taxpayers established in another EU country (SME);
• The buyer is a natural person (consumer) not conducting business activity;
• The buyer is an entity that does not use a tax identification number.

In such a situation, the structured invoice is transmitted in the manner agreed upon with the buyer.

No fixed establishment

If the foreign taxpayer does not have a registered office in Poland, it should also be verified whether a fixed establishment (permanent place of business) will be established in Poland. A fixed establishment (SMPD) is an autonomous concept arising from EU law and uniformly applied across EU Member States for VAT purposes. In this context, the concept of SMPD is already used both to refer to the place where taxpayers’ obligations arise and also for the purposes of implementing the National e-Invoice System.

The definition of SMPD stems directly from Council Implementing Regulation (EU) No. 282/2011 of March 15th, 2011. Pursuant to Article 11(1) and (2) of the Regulation, SMPD means any location – other than the taxpayer’s registered office – that is characterized by sufficient permanence and an appropriate structure in terms of personnel and technical resources to enable it to:

• receive and use services provided for its own needs (so-called passive SMPD), or
• provide services it performs (so-called active SMPD).

To clarify the concept of SMPD in the context of the National Taxpayers’ Taxation System (KSeF), the Ministry issued Tax Explanations on 28 January 2026. These explanations provide a more detailed understanding of the concept of SMPD. According to the Explanations, for an SMPD to be established, all of the following conditions must be met:

• the service provider’s personnel and technical resources are located at the given location (SMPD);
• this resource has a structure that enables the provision of services;
• the location where this infrastructure is located is characterized by sufficient permanence to provide services.

1. Possession of appropriate personnel and technical resources

The first criterion is that the location has technical and personnel resources. Such resources may include employment, machinery, equipment, operating systems, and real estate. The resources should be directly dependent on the taxpayer’s operations. This can occur not only through the taxpayer’s own personnel and technical resources, but also by providing such resources to the taxpayer (foreign entity) (e.g., through leasing or rental).

An SMPD will not be created if the personnel and technical resources (own or provided) are not used in processes relevant to the foreign taxpayer’s business activity, if they constitute ancillary activities.

2. A structure that enables the provision of services

The second criterion is that the personnel and technical resources within the functional structure are in place in such a way that services can be provided. An appropriate degree of independence from the core business is important here – especially if the SMPD has the capacity to make decisions and conclude contracts.

The structure established should enable the effective performance of services using the personnel and technical resources available in the given country. Only then, with respect to the services provided, can it be considered a permanent establishment.

3. Sufficient Permanence

The facilities comprising the SMPD should be characterized by “sufficient permanence” to enable the making of decisions regarding day-to-day management and the provision of services. The technical and personnel structure of the SMPD should be permanent, meaning it should continuously have resources that allow for the actual provision of services from this location. The SMPD should demonstrate a degree of commitment that allows for the recognition that such activities are not periodic or incidental. This can be demonstrated, for example, by concluding long-term contracts and having adequately durable personnel and technical resources (especially its own).

SMPD and KSeF

Based on EU regulations, as well as the Tax Explanations issued by the Ministry of Finance, determining whether a foreign taxpayer has a permanent establishment in Poland will be important in the context of the KSeF. However, the key factor is not whether the foreign taxpayer has infrastructure in Poland, but what roles and functions it performs.

Excluding the establishment of SMPD in Poland will mean that a foreign taxpayer will not be obliged to issue and receive structured invoices through the KSeF. However, if they deem it worthwhile to use the KSeF for business reasons, they can voluntarily join.