(Unofficial translation)
Scope of the application for an individual interpretation
On May 16 , 2023, you received an application of May 10, 2023 for an individual interpretation, which concerns the correctness of recording the sale of car washing services. You supplemented it with a letter of June 27, 2023 (received on June 27, 2023).
The content of the application is as follows:
Description of the future event
Pursuant to the decision issued by the Head of the Tax Office (…) case reference: (…) you received consent to postpone the date of starting the recording of sales in self-service car washes using cash registers until August 2, 2023.
You are afraid that you will not meet the fiscalization obligation by this date, because according to the letter from A., which is a producer of software for handling cash and card payments together with Polskie e-payments – a provider of services on self-service payment terminals in your car washes self-service (…) in (…) and (…), for reasons beyond their control, the deadline for the installation of cash registers at the cash registers installed in your car washes is also delayed due to the lack of readiness to install the company that operates self-service payment terminals Polish e-payments (copy of letter attached).
Due to the above, as of May 10, 2023, you have not set any date for starting the installation works of the above-mentioned software for registering the sale of services at self-service car washes using cash registers by the company (…), you are forced to look for other suppliers of fiscalization software on the market. This will involve very high costs due to the re-implementation of the entire self-service cash payment system and the installation of new payment terminals offered by other providers.
Supplementing and specifying the description of the future event
You are a VAT payer. As part of your business, you sell to natural persons who do not run business activities and to farmers. The customer will purchase tokens and prepaid cards for the car wash from the car wash employee in (…), and in the showroom at the car wash in (…). The prepaid card allows you to use the self-service car wash directly. The purchase of a token and a prepaid card will be recorded immediately after purchase at the cash registers in the car wash (…) and the showroom in (…), where there is a car wash. The buyer will receive a receipt or a VAT invoice for the purchase of the vehicle washing service. The car wash is launched after inserting a token, coins or applying a prepaid card. The device also accepts coins. The purchase of tokens and prepaid cards will be recorded at the stationary cash register at the cash register in (…) and at the cash register in the showroom in (…), where cleaning and washing devices are also sold. The purchase of a token or prepaid card will be documented with a fiscal receipt or VAT invoice, right next to the car wash.
Question
If as of August 2, 2023, it will still not be possible to fiscalize washing services accepted at self-service payment terminals installed at car washes supporting Polish e-payments, can you turn off these self-service terminals (without the possibility of paying with a card) and sell non-cash washing services by purchasing tokens or prepaid cards at a stationary cash register in a car wash in (…) and (…), which are reported and registered in the Tax Office (…)?
your position on the matter
Do you believe that you have the opportunity to sell washing services by selling tokens and prepaid cards, if the terminal machines at the stands are turned off and only the central non-cash payment system, the so-called stationary, where there will be a cash register.
You indicate that “According to the regulation of the Ministry of Finance, a cash register must be located at each position where payment is accepted. If the car wash has a central payment system in which tokens are issued, then the cash register is installed only in the place where the payment is made. If the car wash does not have a central payment point and each station has a payment option, then each individual station must be equipped with a cash register.
Job evaluation
The position you presented in your application is correct.
Justification of individual interpretation
The obligation to keep sales records using cash registers results from the provision of art. 111 sec. 1 of the Act of March 11, 2004 on tax on goods and services (i.e. Journal of Laws of 2022, item 931, as amended), hereinafter referred to as the “Act”. According to this provision:
Taxpayers making sales to natural persons not engaged in economic activity and flat-rate farmers are required to keep records of sales using cash registers.
The above provision defines the general principle which indicates that the obligation to keep sales records using a cash register applies to all taxpayers who sell to the recipients specified therein, i.e. natural persons not conducting business activity and flat-rate farmers. Therefore, one of the basic criteria determining the obligation to register at the cash register is the status of the buyer of the services provided by the taxpayer.
Pursuant to Art. 111 sec. 3a point 1 of the Act:
Taxpayers keeping records of sales using cash registers are obliged to issue and issue to the buyer a fiscal receipt or invoice for each sale in paper form or, with the consent of the buyer, in electronic form, sending this document in a manner agreed with him.
Based on Article. 111 sec. 8 of the Act:
The proper Minister of public financies may exempt, by regulation, for a limited period of time, certain groups of taxpayers and certain activities from the obligation referred to in paragraph 1. 1, and specify the conditions for using the exemption, taking into account the public interest, in particular the situation of the state budget (…).
Issues regarding exemptions from the obligation to keep records using cash registers of certain activities and certain groups of taxpayers and the dates for starting to keep records using cash registers are regulated by the Regulation of the Minister of Finance of December 22, 2021 on exemptions from the obligation to keep sales records using cash registers (Journal of Laws of 2021, item 2442, as amended), hereinafter referred to as the “Regulation”.
Exemption from the obligation to keep records using cash registers is specified in § 2 and § 3 of the Regulation. These exemptions indicate two types of exemption from the obligation to record sales using cash registers, namely exemption for specific groups of taxpayers (subjective exemption) and exemption for specific activities (objective exemption).
Pursuant to § 2 sec. 1 of the regulation:
The obligation to record in a given tax year, but no longer than until December 31, 2023, the activities listed in the annex to the regulation are released.
Pursuant to § 2 sec. 2 of the regulation:
With regard to certain activities listed in the Annex to the Regulation, the exemption referred to in par. 1 shall be applied in accordance with the conditions set out in that Annex.
In pos. 40 of the Annex to the Regulation lists:
Services provided using devices, including ticket issuing devices, operated by the customer, which also accept payments in an unmanned system:
1) coins or banknotes, or
2) other form (non-cash), if the records and evidence documenting the transaction clearly show which specific transaction the payment concerned.
At the same time, § 4 of the regulation indicates that the exemptions from the obligation to record, referred to in § 2 and § 3, do not apply, regardless of the amount of turnover achieved, to the delivery of goods and services listed therein.
And so, in accordance with § 4 sec. 1 point 2 lit. m) of the regulation, which has been in force since February 1, 2023:
Exemptions from the obligation to record, referred to in § 2 and § 3, do not apply to the provision of car washing, car cleaning and similar services (PKWiU 45.20.30.0), including using customer-operated devices, which in the unattended system take receivable in coins or banknotes, or in another form (non-cash).
The above provision indicates that from February 1, 2023, car washing, car cleaning and similar services (PKWiU 45.20.30.0), performed using customer-operated devices that accept payment in coins or banknotes, or in another form (non-cash) in an unattended system ) are subject to an absolute obligation to record these activities at the cash register. Therefore, the exemption indicated in item 40 of the annex to the regulation.
In addition, pursuant to § 6 sec. 1 point 1 and 2 point a) of the Regulation of the Minister of Finance of April 29, 2019 on cash registers (i.e. Journal of Laws of 2021, item 1625, as amended), hereinafter referred to as the “Regulation on cash registers”:
Taxpayers keeping records:
1) issue and issue to the buyer, without his request, a fiscal receipt when making the sale, no later than at the time of receipt of the payment, regardless of the form of payment, subject to § 12; instead of a fiscal receipt, taxpayers can issue an invoice using a cash register and issue it to the buyer.
2) in the case of receipt before the sale of all or part of the receivables (payment) in cash – issue and issue to the buyer, without his request, a receipt upon receipt.
However, § 12 of the regulation on cash registers:
- If the taxpayer keeps records using the cash register referred to in § 7 para.1 point 2 lit.f, when the cash register does not contain a cash register printer, the taxpayer:
1) does not issue a fiscal receipt, a canceled fiscal receipt, an invoice and a canceled invoice in paper form and provides the buyer with the opportunity to get acquainted with the sales data by showing them appropriately in accordance with the provisions on technical requirements for cash registers;
2) does not issue:
- a) daily fiscal reports,
- b) periodic fiscal reports,
- c) fiscal settlement report,
- d) total periodic fiscal reports,
- e) a combined fiscal settlement report,
- f) fiscal event reports,
- g) fiscal report of fiscalization,
- h) non-fiscal documents
– in paper form and immediately after execution, it sends periodic fiscal reports, a settlement fiscal report, a total periodic fiscal report, a total settlement fiscal report and fiscal event reports to publicly available computer systems and saves or prints them in these systems, and daily fiscal reports, fiscal and non-fiscal documents can be sent to these systems and recorded or printed in these systems.
- In the case of keeping records using the cash register referred to in § 7 sec.1 point 2 lit.f, when the cash register contains a cash register printer, the taxpayer may not issue a fiscal receipt, a canceled fiscal receipt, an invoice and a canceled invoice in paper form, if it provides the buyer with the opportunity to read the sales data by showing them in accordance with the provisions on technical requirements (criteria and technical conditions) for cash registers.
From the description of the case, it appears that you are a VAT payer. You run self-service car washes in (…) and (…). As part of your business, you sell services to natural persons who do not run business activities and to farmers.Pursuant to the decision issued by the Head of the Tax Office, you received permission to postpone the date of starting the recording of sales in self-service car washes using cash registers until August 2, 2023. However, you are concerned that it will not be possible to install cash registers in the car wash devices by this date. In connection with the above, you are planning to introduce a system of using self-service car washes in such a way that the customer will purchase tokens and prepaid cards from a car wash employee in (…) and in a showroom at a car wash in (…). The prepaid card and token will allow you to use the self-service car wash directly. Purchase of a token and a prepaid card enabling the use of the above-mentioned services will be recorded immediately after purchase at the cash registers in the car wash (…) and the showroom in (…). The buyer will receive a receipt or a VAT invoice for the purchase of the vehicle washing service. The purchase of a token or prepaid card will be documented with a fiscal receipt or VAT invoice, right next to the car wash.
Your doubts concern the issue of whether, if on August 2, 2023, you will not be able to fiscalize washing services in self-service payment terminals installed at car washes, can you turn off these self-service terminals (without the possibility of paying with a card) and sell washing services via purchase of tokens or prepaid cards at the stationary cash register at the car wash in (…) and (…).
The above-mentioned provisions show that the sale of car washing and cleaning services, including services provided in your self-service car washes to natural persons not conducting business activity and flat-rate farmers, should be recorded at the cash register.
Therefore, with regard to the correctness of the adaptation by Mrs. the obligation to record the service of using a self-service car wash using the cash register, it should be indicated that in the described circumstances, each time when purchasing a token and a prepaid card entitling to use self-service devices, this transaction will be recorded at the cash register and the service recipient will receive from the employee car wash fiscal receipt. Thus, when you (your employee) receive all or part of the amount due (payment) before selling the car wash service, you will fulfill the obligation to issue and deliver to the buyer a fiscal receipt in paper form (or an invoice) for the service provided. The purchase of a prepaid token/card by the customer, which will enable the use of the service, and thus the receipt of a fiscal receipt by the customer, will take place near self-service devices.
In connection with the above, the principles set out in Art. 111 sec. 1 of the Act and in § 6 points 1 and 2 point a) of the Regulation on cash registers, in the case of the sale described in the application, they will be met by you to the extent you indicate in the question and position, i.e. only by means of the sale of tokens and prepaid cards purchased at stationary points in (…) and (…), where the service will be registered at the cash register.
However, in the facts of the application, you also indicated that the device also accepts coins. Referring to this situation, it should be pointed out that if, in addition to the token and the prepaid card, the car wash is also launched using coins, then the above condition will not be met. Launching the car wash with coins, in the circumstances described, will not be registered at the cash register. Therefore, if the devices to provide the service selected by the customer are activated not only with the use of previously purchased tokens or prepaid cards, i.e. in a non-cash form, but also with the use of coins, then it is required that each car wash device accepting cash payments has a cash register.
Therefore, one should agree with your position that you have the option of selling washing services by selling tokens and prepaid cards, if the terminal machines at the stands are turned off and the central cashless payment system, the so-called stationary, where there will be a cash register. However, if payment with coins in a self-service car wash is not disabled, then each individual position must be equipped with a cash register.
Additional information
It should be noted that the tax authority is closely bound to the description of the future event presented in the application. He bears the risk of possible incorrect or imprecise presentation of the description of the future event in the application. It should be emphasized that an individual interpretation produces tax law effects only if the actual state of the case being the subject of the interpretation coincides with the description provided by you in your application. Therefore, in the event of a change in any element of the description of the case presented in the application, the answer provided loses its validity.
Information on the scope of the decision
The interpretation concerns the future event that you presented and the legal status that is in force on the date of the interpretation.
Instruction on the protective function of interpretation
- The protective function of individual interpretations is determined by the provisions of Art. 14k-14nb of the Act of August 29, 1997 – Tax Ordinance (Journal of Laws of 2022, item 2651, as amended). The interpretation will be able to play a protective role if: Your situation is consistent (identical) with the description of the future event and you comply with the interpretation.
- According to Art. 14na § 1 of the Tax Ordinance:
the provisions of art. 14k-14n of the Tax Ordinance Act do not apply if the facts or future event being the subject of an individual interpretation is an element of activities that are the subject of a decision issued:
1) with the application of Art. 119a;
2) in connection with the abuse of the right referred to in Art. 5 sec. 5 of the Act of 11 March 2004 on tax on goods and services;
3) using measures limiting contractual benefits.
- According to Art. 14na § 2 of the Tax Ordinance:
the provisions of art. 14k-14n shall not apply if the tax advantage found in the decisions listed in § 1 is the result of compliance with established interpretation practice, general interpretation or tax explanations.
Instruction on the right to lodge a complaint against the interpretation
You have the right to appeal against this individual interpretation to the Provincial Administrative Court in (…). The rules for challenging individual interpretations are regulated by the Act of 30 August 2002, Law on Proceedings before Administrative Courts (Journal of Laws of 2023, item 259, as amended; hereinafter referred to as “PPSA”).
A complaint to the Court is lodged through the Director of the KIS (Article 54 § 1 PPSA). The complaint should be filed within thirty days from the date of delivery of the individual interpretation (Article 53 § 1 of the PPSA):
- in paper form, in two copies (original and copy) to the following address: Krajowa Informa- tion Skarbowa, ul. Warszawska 5, 43-300 Bielsko-Biała (Article 47 § 1 PPSA), or
- in the form of an electronic document, in one copy (without a copy), to the address of the Electronic Inbox of the National Treasury Information on the ePUAP platform: /KIS/SkrytkaESP (Article 47 § 3 and Article 54 § 1a PPSA).
A complaint against an individual interpretation may be based only on the allegation of violation of the provisions of the procedure, misinterpretation or incorrect assessment of the application of a provision of substantive law. The court is bound by the allegations of the complaint and the legal basis invoked (Article 57a PPSA).
Legal basis for issuing the interpretation
The legal basis for issuing this interpretation is Art. 13 § 2a and art. 14b § 1 of the Act of August 29, 1997 – Tax Ordinance (Journal of Laws of 2022, item 2651, as amended).
Source: gov.pl
