Tax consultations – draft tax explanations regarding a Permanent Place of Business (Fixed Establishment) for the needs of KSeF

The document is a draft Polish Ministry of Finance tax clarification on how to determine a fixed establishment (FE) in Poland for VAT purposes in relation to the obligation to issue e‑invoices via the National e‑Invoicing System (KSeF) from 1 February 2026.

Scope and purpose

The text explains when a taxpayer (especially a foreign one) is regarded as having a fixed establishment in Poland for the specific purpose of determining whether it must issue structured invoices via KSeF.
It focuses on the supplier’s FE (not the customer’s) and on whether that FE actively participates in a given supply of goods or services.

Legal framework

From 1 February 2026, taxpayers performing activities subject to Polish VAT invoicing rules must, as a rule, issue structured invoices using KSeF, with exceptions for those without a seat or FE in Poland or whose FE does not participate in the transaction.
Because neither Polish nor EU VAT rules contain a separate FE definition for invoicing, the text relies on the EU “fixed establishment” concept in Article 11 of Implementing Regulation 282/2011 and CJEU case law (e.g. Welmory, Berlin Chemie, Cabot Plastics, Adient, Dong Yang).

Definition of fixed establishment

A fixed establishment is any place, other than the business seat, with sufficient permanence and an appropriate structure of human and technical resources to receive and use services for its own needs (passive FE) or to provide services itself (active FE).
The text stresses that an FE for VAT is not the same as a permanent establishment for income tax and that a tax PE, a VAT ID number, or group/shareholding links do not automatically create an FE.

Core criteria: resources, function, permanence

Resources: There must be personnel and technical means (own or made available under lease/outsourcing) in Poland, controlled by the foreign entity “as if” they were its own, and adequate to the business profile (e.g. warehouse and staff for traditional trade; not necessarily extensive assets for online sales).
Function: The structure must be capable of actually performing supplies (or, in a passive FE scenario, of actually receiving and using services); purely auxiliary activities like PR, recruitment, or quality checks are not enough.
Permanence: The human and technical resources must be available in Poland on a sufficiently stable, non‑temporary basis, often reflected in long‑term or exclusive contracts and continuous operations, not one‑off or incidental projects.

Active FE and KSeF obligation

For a foreign taxpayer, the decisive question is whether there is an active FE in Poland that can carry out the specific taxable transaction which falls under Polish invoicing rules; only in that case is KSeF use mandatory.
If the taxpayer has an FE in Poland that only receives services (passive FE) while the underlying sales are carried out from abroad, that FE does not trigger a KSeF obligation for those sales; the taxpayer may still choose to use KSeF voluntarily.

Illustrative examples

A Korean company with a Polish PR and complaint‑handling office but no warehouse or logistics staff in Poland is considered to have only a passive FE, so the Polish FE does not participate in domestic supplies of goods and the KSeF obligation does not arise for those supplies.
In contrast, an EU company that controls Polish warehouse facilities and staff (either directly or via staff leasing) and uses them to conclude contracts, store goods, and organise deliveries is treated as having an active FE in Poland, and must issue structured invoices via KSeF for supplies made from that structure.

Special situations and corrections

The guidance covers cases where a taxpayer has multiple activities: e.g. a leasing FE in Poland and a separate rental of Polish real estate managed from abroad, clarifying that KSeF is only obligatory where the Polish FE actually performs the given transaction.
It also states that if an FE in Poland ceases to exist before a return of goods or other post‑transaction event occurs, the taxpayer is not required to issue a correcting structured invoice via KSeF, even if the original invoice was issued in KSeF.

Protective effect of the guidance

The text is issued as an official tax explanation based on the Polish Tax Ordinance; applying it grants protection similar to that from an individual ruling, for periods in which the taxpayer followed the guidance.
That protection does not apply where a tax benefit resulting from following the guidance is later challenged under the general anti‑avoidance rule, the VAT abuse of law doctrine, or treaty anti‑abuse clauses.

Source

Briefing Document: EU VAT principles on ”Fixed Establishment” based on ECJ case-law – VATupdate