Empty Invoices Under Polish Law
Definition, Consequences, and Defense Strategies for Businesses Operating in Poland [2026]
A single invoice whose content diverges from the underlying economic reality can trigger a cascade of legal consequences – from a standalone obligation to remit the VAT indicated on its face, through the forfeiture of the recipient’s right to deduct input tax, to criminal liability carrying penalties of up to twenty-five years’ imprisonment. The phenomenon of empty invoices is by no means confined to deliberate tax fraud. With increasing frequency, Polish tax authorities challenge invoices issued by entrepreneurs who committed nothing more than procedural oversights: trusting a counterparty without verification, issuing an invoice to the wrong entity, or describing a service in terms that fail to correspond precisely to what was actually performed. The statutory framework draws no distinction based on motive – what matters is the objective discrepancy between the document and the facts.
What Constitutes an Empty Invoice – and Why the Concept Is Broader Than It Appears
An empty invoice (Polish: pusta faktura) is a document whose content does not reflect the actual course of the underlying economic transaction – whether because no transaction occurred at all, or because material elements of the transaction (the parties, the subject matter, the value) were presented in a manner inconsistent with the facts. The concept thus extends well beyond the colloquial understanding of a document fabricated ex nihilo.
In judicial practice, the term encompasses any invoice whose content fails to correspond to the actual economic event. The discrepancy may relate to any material element: the identity of the transacting parties, the nature of the supply, the scope of services, the quantity, the value, or even the period in which the service was purportedly rendered. The related but distinct phenomenon of invoice fraud – fictitious invoices generated within organized criminal schemes such as VAT carousel fraud – is treated under a separate analytical framework.
Four principal variants merit distinction.
An invoice entirely devoid of transactional substance is a document issued despite the complete absence of any supply of goods or provision of services. The goods do not exist; the service was never performed. The invoice was created solely to generate an artificial right to deduct input VAT on the part of the recipient. The Supreme Administrative Court (NSA), in its judgment of 15 January 2025 (I FSK 1159/21), held unequivocally that in the case of such invoices, an inquiry into the recipient’s good faith is entirely precluded.
An invoice overstating the amount of tax documents a transaction that did take place, but indicates a VAT amount exceeding the sum actually due. Where an invoice records 120 hours of consulting when only 40 were delivered, the authority may treat the surplus not as an arithmetical error but as documentation of a supply that was never made.
An invoice misidentifying the parties to the transaction names as the purchaser an entity that was not, in fact, the recipient of the supply, or identifies as the issuer a party that did not perform the service. From the tax authority’s perspective, such an invoice may be treated identically to one lacking any transactional basis whatsoever.
An invoice misdescribing the subject matter of the supply – the variant most frequently underestimated by entrepreneurs. The service was performed, the parties are correctly identified, but the description on the invoice does not correspond to what was actually delivered. The invoice states “marketing services” where, in reality, legal services were rendered. The NSA, in its judgment of 21 August 2025 (I FSK 1039/22), held that the right to deduct requires a determination that “the invoice documents transactions that were actually performed” – where “transactions” refers to the subject matter of the supply, not merely its existence.
In the terminology of Article 62(2) of the Fiscal Penal Code (Kodeks karny skarbowy, hereinafter “FPC”), this corresponds to the concept of an “unreliable invoice” (faktura nierzetelna) – one whose content is inconsistent with reality in any material respect. The broader problem of unreliable books and records frequently accompanies such findings.
Article 108 of the Polish VAT Act – the Self-Executing Liability Mechanism
The pivotal provision governing empty invoices under Polish law is Article 108(1) of the Act on Tax on Goods and Services (ustawa o podatku od towarów i usług, hereinafter “the VAT Act”), which implements Article 203 of Council Directive 2006/112/EC. Its language is terse but its implications are far-reaching: any person who issues an invoice indicating an amount of tax is obligated to remit that tax.
The word “any” (każdy) is to be taken literally. The obligation extends not only to registered VAT taxpayers but equally to exempt entities, natural persons not conducting business activity, and entities lacking taxpayer status altogether.
The obligation under Article 108 is autonomous in character. As the Provincial Administrative Court (WSA) in Szczecin explained in its judgment of 5 February 2025 (I SA/Sz 403/24), the essential function of the provision is fiscal: the determinative factor is the risk of revenue loss to the state treasury arising from the possibility that the tax indicated on an invoice introduced into commercial circulation may subsequently be deducted by its recipient.
At the same time, the WSA in Bydgoszcz (21 January 2025, I SA/Bd 716/24) emphasized that Article 108 “must be applied following an analysis of whether the situation created by the issuance of the invoice carries a risk of loss to the State Treasury.” This opens an avenue of defense in circumstances where the issuer can demonstrate that no deduction was, in fact, made.
A significant argument in this regard is furnished by the judgment of the Court of Justice of the European Union (CJEU) of 8 December 2022 in Case C-378/21 (P GmbH). The Court held that Article 203 of the VAT Directive – and, by extension, Article 108 of the Polish VAT Act – does not apply where no risk of loss of tax revenue exists. In the case at hand, the recipients of services were exclusively final consumers who possessed no right to deduct input VAT. Since the risk of revenue loss was nil, the issuer of an invoice indicating an incorrectly calculated tax was not obligated to remit the surplus. This ruling carries significant practical implications for businesses supplying services to natural persons not conducting business activity.
A structural detail of Article 108 warrants particular attention. The provision speaks of an obligation to pay the tax, rather than to account for it in a periodic return. This means that the liability arising under Article 108 is self-standing and distinct from the ordinary VAT settlement mechanism (cf. T. Michalik, Commentary on Article 108 of the VAT Act, 17th ed., 2024, marginal notes 5, 25–26). A taxpayer reporting a surplus of input tax over output tax in a given period cannot offset the Article 108 liability against that surplus – the amount must be discharged independently. An unpaid liability constitutes a tax arrear (zaległość podatkowa), with all attendant consequences, including default interest.
The courts have drawn a crucial distinction, however. The WSA in Szczecin (9 January 2025, I SA/Sz 712/24) held that where the indication of undue tax results from a deliberate act – rather than mere error – the payment obligation arises from the very fact of issuance, without the need to establish that any revenue loss actually occurred. The defense that “no one deducted” is available only where the issuer acted in good faith.
When a Genuine Transaction Gives Rise to an Empty Invoice – Judicial Trends
A particularly perilous scenario for entrepreneurs is one in which the transaction did, in fact, occur – goods were delivered, services performed – yet the tax authority nevertheless treats the invoice as “empty.”
A genuine transaction conducted within a fraudulent scheme. The NSA (6 February 2025, I FSK 1545/21) held that Article 108(1) applies even where the physical movement of goods actually took place, provided the transaction was executed as part of a tax fraud. The physical existence of goods does not, of itself, establish the reliability of the invoice.
An entity lacking genuine economic substance. The NSA (27 March 2025, I FSK 2166/21) upheld findings that invoices issued by a company whose director had no knowledge of its operations, which possessed no business assets, and whose activities were financed entirely by the entities to which it purportedly supplied services, were unreliable.
Transactions between related parties devoid of a commercial purpose. The WSA in Gliwice (26 November 2025, I SA/Gl 394/25) held that where a fraudulent arrangement between affiliated entities involves transactions lacking any genuine commercial objective, the supply is not effected within the framework of economic activity. Such arrangements are frequently encountered as elements of VAT carousel fraud.
Allocation of Liability for Empty Invoices – Issuer, Recipient, Agent, Employee
Liability for an empty invoice rests, in the first instance, with its issuer. Moreover, as the WSA in Szczecin (I SA/Sz 403/24) observed, it is the issuer of unreliable invoices – not the tax authority – who bears the burden of eliminating the risk of revenue loss, or of demonstrating that no such risk materialized.
The recipient of an empty invoice who utilizes it to deduct input VAT forfeits the right to that deduction under Article 88(3a)(4) of the VAT Act. The allegation that the taxpayer purchased an empty invoice is among the most frequently raised charges in the course of tax audits.
The appointment of an agent does not shield the principal from liability. The NSA (24 June 2025, I FSK 699/22) held definitively: “The technical act of issuing the invoices was performed by the company’s agent; however, the appointment of an agent does not relieve the taxpayer of liability.”
Employee and employer. The CJEU, in its judgment of 30 January 2024 in Case C-442/22, ruled that an employee who used his employer’s data to issue an empty invoice bears liability – unless the employer failed to exercise due diligence in supervising the invoicing process. The NSA (3 September 2024, I FSK 1212/18) elaborated: the employer is expected to establish a system for verifying the integrity of the invoice-issuance process. The absence of such procedures means that liability for unreliable invoices issued by an employee will fall upon the employer.
Criminal and Fiscal – Penal Consequences of Empty Invoices
Article 62(2) of the Fiscal Penal Code criminalizes the issuance of an unreliable invoice – one whose content is inconsistent with reality in any material respect: the identity of the parties, the subject matter of the transaction, the quantity, the value, or the date. The penalty is a fine of up to 720 daily rates, which under current statutory parameters can amount to several million Polish złoty.
Liability attaches to both the issuer and the user of the unreliable document. Proceedings of this nature fall within the broader domain of white-collar criminal defense.
In the most serious cases, liability extends beyond the Fiscal Penal Code to the Criminal Code (Kodeks karny). Two categories of invoice-related offenses must be distinguished. Article 270a of the Criminal Code penalizes material falsification – the forgery or alteration of an invoice. Article 271a addresses intellectual falsification – the issuance of an invoice attesting to facts that are untrue as to circumstances capable of affecting the determination of a public-law obligation, or the use of such an invoice. It is Article 271a that applies in the typical cases involving empty invoices.
Liability under Article 271a(1) arises, however, only where the aggregate amount indicated on the invoice (or the cumulative value of invoices within a continuing offense under Article 12(1) of the Criminal Code) exceeds PLN 200,000 – the statutory threshold of “significant value” (Article 115(5) and (7) of the Criminal Code). The aggravated type under Article 271a(2) – where the value exceeds PLN 5,000,000 – constitutes a felony carrying imprisonment from 3 to 20 years. The most severe penalty is prescribed by Article 277a(1): where the act defined in Article 271a(2) was committed to the detriment of the State Treasury, the sentence ranges from 8 to 25 years’ imprisonment. The legislature also provided for a case of lesser gravity (Article 271a(3)), in which the penalty does not exceed 3 years – thereby rendering available conditional discontinuance of proceedings, suspended execution of sentence, and even abstention from punishment (M. Gałęski, in M. Królikowski & R. Zawłocki (eds.), Criminal Code: Commentary, vol. III, 5th ed. 2024, Art. 271a, n. VII.3).
Critically, offenses under Article 271a require mens rea – at minimum, dolus eventualis. As has been observed in the scholarly literature, the mere objective failure to exercise due diligence in commercial dealings does not satisfy the subjective elements of the offense (M. Gałęski, op. cit., Art. 271a, n. III.3). In other words, an entrepreneur who committed an unintentional error on an invoice will not incur criminal liability under Article 271a, even where the amount on the invoice exceeds the statutory threshold. As Gałęski aptly notes, “cases of error – that is, the unintentional introduction of false data into an invoice, regardless of their significance – fall outside the scope of criminal liability” (op. cit., Art. 271a, n. II.A.10).
Common Scenarios in Which Entrepreneurs Inadvertently Generate Empty Invoices
Empty invoices do not arise exclusively from fraud. A considerable proportion of the cases encountered in tax advisory practice originate in procedural errors or misplaced trust.
Invoicing a spouse’s or partner’s entity. An entrepreneur utilizes advisory services in connection with his own business activity but requests that the invoice be issued to a spouse’s company or a partner’s sole proprietorship. No contract exists, no correspondence, no evidence of a business relationship. The VAT treatment of transactions between spouses is governed by distinct rules.
A service description that does not correspond to reality. A firm engages legal services, but the invoice reads “business consulting.” In the event of preliminary inquiries, the authority will compare the description against source documentation – and if the two do not correspond, it will challenge both the right to deduct and the reliability of the invoice.
Absence of a written agreement. Services rendered on the basis of an oral instruction, with the invoice directed to a party identified by telephone. In the event of a tax audit, there is no document confirming who in fact commissioned the service.
Invoices for advisory services unsupported by delivery documentation. The authorities increasingly demand supplementary evidence: correspondence, meeting notes, reports, written opinions. An invoice and a bank transfer, standing alone, no longer suffice.
Issuing invoices to cash register receipts without verification. The WSA in Lublin (15 October 2025, I SA/Lu 473/25) described a scheme in which a fuel station issued invoices on the basis of receipts presented by customers – without verification, using the tax identification number nominated by the customer. The system permitted the issuance of multiple invoices to a single receipt for different purchasers.
Good Faith and Due Diligence in Empty Invoice Disputes
The concept of good faith in the VAT context delineates the boundary between the entrepreneur who fell victim to fraud and the one who participated in it. The evolving jurisprudence on this issue is central to disputes with tax authorities.
The NSA (20 March 2025, I FSK 2399/21) defined due diligence as “the taxpayer’s state of awareness and the associated obligation and capacity to foresee certain events.” “A person acts in bad faith not only when he has actual knowledge of the material facts, but also when he lacks such knowledge as a result of his own negligence.”
The NSA (9 January 2025, I FSK 1355/21) held that conscious participation in fraud and failure to exercise due diligence are not mutually exclusive categories but rather occupy points along a spectrum. A taxpayer forfeits the right to deduct not only where the authority proves that he knew of the fraud, but also where the objective circumstances indicate that he should have known.
An internet search as the minimum standard. The NSA (9 January 2025, I FSK 629/23) observed that a mere internet search for the counterparty would have revealed warnings concerning the fraudulent character of its activities. Since the entrepreneur failed to take even so elementary a step, he could not invoke the defense of good faith.
The WSA in Rzeszów (11 February 2025, I SA/Rz 593/24) emphasized that “neither specialized knowledge nor extraordinary measures [for counterparty verification] are required – common sense and the rules of practical experience suffice.” A rationally acting entrepreneur should decline to proceed with a transaction where even a single material circumstance raises doubt.
The burden of proof as to bad faith rests, however, with the authority. The NSA (21 January 2025, I FSK 1447/21) held that the tax authorities must establish, on the basis of objective criteria, that the taxpayer knew or should have known of the fraud – without requiring the invoice recipient to undertake inquiries beyond the scope of his obligations. A comprehensive due diligence process can provide critical protection in such circumstances.
Correcting an Empty Invoice – Scope and Limitations
Correction is available – and indeed even during the course of a customs and fiscal audit. The CJEU, in its judgment of 18 March 2021 in Case C-48/20, held that a refusal to permit correction of invoices indicating unduly charged VAT infringes the principle of fiscal neutrality, even where audit proceedings have already been initiated against the taxpayer.
The NSA (15 January 2025, I FSK 1298/21) developed this principle by identifying two independent grounds for correction: good faith on the part of the issuer, or the complete and timely elimination of the risk of revenue loss. Even an issuer who did not act in good faith may correct the invoice, provided that he averted the risk of loss in a timely manner – the response must, however, be prompt.
Where the invoice contains an error in the purchaser’s data but was delivered to the correct recipient, a corrective invoice under Article 106j(1) of the VAT Act suffices. Where the invoice was delivered to the wrong recipient, a correction to zero and the issuance of a new invoice to the proper entity are required. Where the invoice documents a supply that did not occur at all, the invoice may be annulled – but only if it has not yet been introduced into legal circulation, i.e., not yet delivered to the purported purchaser. Once the empty invoice has reached the counterparty, annulment is precluded and a corrective invoice becomes necessary.
The longer a defective invoice circulates in commercial dealings, the more difficult it becomes to persuade the authority of the issuer’s good faith – and the failure to act may itself be treated as an aggravating circumstance in any resulting tax dispute.
Limitation Periods Applicable to Empty Invoice Liabilities
The liability arising under Article 108 of the VAT Act is subject to the general statute of limitations for tax obligations, which in principle runs for five years from the end of the calendar year in which the tax payment fell due (Article 70(1) of the Tax Ordinance). In practice, however, the authorities possess instruments capable of extending this period.
The initiation of proceedings in respect of a fiscal offense or fiscal infraction tolls the running of the limitation period (Article 70(6)(1) of the Tax Ordinance). The NSA (23 April 2025, I FSK 2581/21) held that there is neither a need nor a possibility for separate notification to the taxpayer regarding the tolling of the limitation period for the Article 108 liability in connection with the initiation of such proceedings.
Admissibility of Evidence from Parallel Proceedings
The NSA (4 March 2025, II FSK 14/25) confirmed that evidence gathered in other proceedings – whether tax, customs-and-fiscal, or criminal – may be utilized in tax proceedings conducted against the taxpayer. The Tax Ordinance enshrines an open catalog of evidentiary means.
At the same time, the taxpayer retains the right to request that such evidence be re-conducted in his presence. The NSA (8 January 2025, I FSK 1835/21) held that where a party tenders evidence in support of a thesis different from that adopted by the authority, that evidence cannot be disregarded. This is a defense instrument of considerable practical value – particularly where the taxpayer intends to appeal the tax decision to the administrative courts.
Empty Invoices and the Freezing of Bank Accounts
Where VAT fraud is suspected, the National Revenue Administration (Krajowa Administracja Skarbowa) has the power to freeze the entrepreneur’s bank accounts using the STIR system – without prior notice and without a court order. The freeze may last up to 72 hours and, in justified cases, may be extended to three months. For many businesses, this constitutes a de facto cessation of operations. It should be noted that the split payment mechanism and proper JPK_VAT reporting may mitigate – though they do not eliminate – the risk.
Protecting Your Business Against Empty Invoice Allegations – a Compliance Checklist
Every invoice should be supported by a written contract, purchase order, or engagement letter identifying the actual recipient of the supply, the subject matter, and the scope of services. Oral arrangements do not constitute adequate protection in the event of an audit.
The data appearing on the invoice – both as to the parties and as to the subject matter – must correspond to the actual course of the transaction. The description of services should reflect what was actually performed, rather than a generic category selected for bookkeeping convenience.
In the case of intangible services, it is advisable to maintain systematic documentation of their performance: correspondence, meeting notes, reports, time records.
Businesses whose employees issue invoices should implement internal control procedures. A periodic tax audit allows irregularities to be identified before the authority discovers them.
When establishing new commercial relationships, a basic counterparty verification should be conducted – including a check against the VAT taxpayer register (the so-called “white list”), the National Court Register (KRS), or the Central Register of Economic Activity (CEIDG). Systematic legal due diligence of business relationships has become a standard of reasonable care directly mandated by judicial precedent.
Upon identifying an error on an invoice, a corrective invoice should be issued without delay. Even an issuer who did not act in good faith may avoid the consequences of Article 108 if the risk of revenue loss is eliminated in a timely manner.
Frequently Asked Questions
Can an invoice naming the wrong party be treated as an empty invoice?
It can. Where an invoice documents a service rendered to Entity A but identifies Entity B as the purchaser, the authority may treat it as a document that does not reflect a genuine economic event. The consequence is a payment obligation for the issuer under Article 108, and the forfeiture of the right to deduct on the part of the recipient under Article 88(3a)(4).
Does an inaccurate description of the service render the invoice “empty”?
It may. Where the description of the subject matter does not correspond to what was actually performed, the authority may conclude that the invoice “does not document transactions that were actually carried out” (cf. NSA, I FSK 1039/22). A discrepancy as to the subject matter is treated with the same gravity as a discrepancy as to the parties.
May an empty invoice be corrected during an ongoing audit?
In principle, yes. The CJEU (C-48/20) confirmed that a taxpayer acting in good faith retains the right to correct even after the initiation of audit proceedings. The NSA (I FSK 1298/21) adds that correction is available even absent good faith – provided that the issuer entirely and timely eliminated the risk of revenue loss.
What penalties attach to the issuance of an empty invoice?
On the tax plane, the obligation to remit the VAT indicated on the invoice (Article 108). Under fiscal penal law, a fine of up to 720 daily rates for issuing or using an unreliable invoice (Article 62 FPC). Where the invoice value exceeds PLN 200,000, criminal liability under Article 271a(1) of the Criminal Code arises (imprisonment from 6 months to 8 years). Where the value exceeds PLN 5,000,000, the aggravated type under Article 271a(2) constitutes a felony (3 to 20 years), and in the most serious cases, Article 277a(1) prescribes imprisonment from 8 to 25 years. These offenses require, however, intentional conduct – an unintentional error does not give rise to criminal liability.
Does the recipient of an empty invoice also bear liability?
Yes. The recipient forfeits the right to deduct and is obligated to repay the tax together with default interest. Fiscal–penal liability also attaches. In the case of invoices entirely devoid of transactional substance, the defense of good faith is not available (NSA, I FSK 1159/21).
May the authority rely on evidence from an audit of my counterparty?
Yes. Evidence from other proceedings may be utilized (NSA, II FSK 14/25). The taxpayer retains, however, the right to request that such evidence be re-conducted in his presence.
Does the statute of limitations protect against liability for empty invoices?
Not entirely. The Article 108 liability is subject to the general five-year limitation period, but the authorities may toll the running of that period by initiating fiscal–penal proceedings (Article 70(6)(1) of the Tax Ordinance) – and the taxpayer need not be separately notified of the tolling (NSA, I FSK 2581/21).
Does Article 108 of the VAT Act apply where the recipients are consumers?
No – provided there is no risk, even hypothetical, that the tax will be deducted. The CJEU, in its judgment of 8 December 2022 (C-378/21), held that where the recipients of services are exclusively final consumers who possess no right to deduct input VAT, Article 203 of the Directive (the counterpart of Article 108 of the Polish VAT Act) does not apply. This constitutes a significant line of defense for businesses operating in the B2C segment.
Conclusion
An empty invoice under Polish law triggers three independent regimes of liability: fiscal (Article 108 of the VAT Act – a self-standing obligation to remit the indicated tax), fiscal–penal (Article 62 FPC – fines of up to 720 daily rates), and criminal (Article 271a of the Criminal Code – imprisonment ranging from 6 months to 25 years, depending on the value involved). These consequences attach to both the issuer and the recipient of the invoice.
The critical defense factors are: good faith, the exercise of due diligence in counterparty verification, and the prompt correction of any identified errors. Businesses supplying services to final consumers may invoke the absence of any risk of revenue loss (CJEU, C-378/21). On the criminal plane, the defense lies in demonstrating the absence of mens rea – an unintentional error does not engage criminal liability under Article 271a.
Prevention remains the most effective strategy: written documentation supporting every transaction, accurate service descriptions on invoices, counterparty verification through the VAT taxpayer register, and periodic tax compliance audits.
Skarbiec Law Firm provides strategic tax advisory services to businesses operating in Poland, including matters of invoice compliance, representation in tax litigation, and defense in white-collar criminal proceedings. If your organization has identified concerns regarding the accuracy of issued or received invoices, it is advisable to address them before the tax authority does.
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
