On 3 September 2024, the Supreme Administrative Court (SAC) issued a judgement on the employer’s liability for issuing fake invoices by employees (ref. I FSK 1212/18), which follows the judgement of the Court of Justice of the European Union (CJEU) in case C-442/22.
The case concerned the Company proceedings against which were initiated because of issuing 1600 fake VAT invoices by an employee. The tax authorities have collected extensive evidence, which allowed them to charge with issuing empty invoices.
The case was brought to the Provincial Administrative Court (PAC) in Lublin, which confirmed the right of the tax authorities to initiate proceedings against the Company on the basis of collected evidence (ref. I SA/Lu 987/17). The PAC found that the tax authorities have grounds for accusing the employee and that the involvement of the Company and its management cannot be excluded in this process.
In view of the adverse judgement (of the PAC) for the Company, the case was referred to the SAC. Doubts concerning the liability for issuing fake invoices were the basis for
a preliminary question in this case to the CJEU. On 30 January 2024, the CJEU found that the employee is responsible for issuing fake invoices, provided that the employer has exercised due diligence in supervising the employee. If there was no such supervision, the employer-taxpayer will be liable.
Following such guidance, the SAC issued a judgement unfavourable to the Company.
It expressed a number of doubts regarding the arguments raised by the tax authorities regarding the failure to exercise due diligence. The decision was influenced by the fact that the employee and the computer used had not undergone any inspection for a long time. According to the SAC, the employee can always commit the said abuses, still it is the employer’s responsibility to prevent such actions and implement a number of inspection procedures.
The above judgement clearly shows the need to introduce tax procedures in companies, especially with respect to supervision over employees issuing invoices.
If this issue pertains to your business and you are interested in our assistance, please contact us.
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