Fixed establishment (FE) for National e-Invoicing System (KSeF) in Poland – MoF guidance of 28 January 2026 and practical implications for businesses

A fixed establishment (FE) is a VAT concept describing a situation where a taxpayer — despite having no registered office in Poland — has a sufficiently stable and organised presence in Poland (people and technical resources) that can genuinely take part in transactions. In Polish tax guidance, this concept is referred to as stałe miejsce prowadzenia działalności gospodarczej (SMPD).

In practice, identifying whether a foreign business has an FE in Poland can determine whether it must issue structured invoices via Poland’s National e-Invoicing System (KSeF).

As of 1 February 2026, taxpayers are generally required to issue structured invoices using KSeF. For entities without a registered office in Poland, the decisive issue is whether they have an FE in Poland and whether that FE participates in a given supply of goods or services.

The tax explanations dated 28 January 2026 set out practical criteria for assessing an FE for KSeF invoicing purposes — especially from the perspective of a foreign seller that needs to confirm its invoicing obligations.

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Who is required to invoice in KSeF in the context of an FE?

General rule: obligation, exceptions, and a “transaction-by-transaction” approach

In simplified terms, the obligation to issue structured invoices in KSeF does not apply to two situations that are most relevant for foreign entities:

1. No registered office in Poland and no FE in Poland – KSeF invoicing is, as a rule, voluntary.
2. No registered office in Poland, an FE exists in Poland, but it does not participate in the transaction (the supply documented by the invoice) – the KSeF obligation does not arise, and KSeF remains optional.

By contrast, KSeF will apply to a taxpayer without a registered office in Poland if both conditions are met:

• the taxpayer has an FE in Poland, and
• that FE actively participates in the supply of goods or services for which the invoice is issued.

In practice, this often means you must assess your obligations against your operating model — and frequently by transaction type.

Transitional periods (important for planning)

The guidance also mentions transitional solutions where certain taxpayers may still issue invoices outside KSeF (e.g., depending on specific sales thresholds).

For foreign businesses, the key point is that transitional flexibility does not replace the FE analysis — because the FE assessment determines whether the KSeF obligation arises at all.

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What an FE is — and what it is not (key distinctions)

FE definition (VAT-based, applied to KSeF)

KSeF does not introduce a separate definition of an FE. Therefore, as indicated in the guidance, the assessment should rely on the definition derived from EU VAT rules and VAT case law.

An FE is a place other than the taxpayer’s registered office which:

• has a sufficient degree of permanence, and
• has a suitable structure in terms of human and technical resources, so that it can enable either: the receipt and use of services for the needs of that place (a “passive FE”), or the provision of services / performance of activities (an “active FE”).

Important practical point: having a Polish VAT number on its own does not prove the existence of an FE.

FE vs permanent establishment (PE) for income taxes

The guidance clearly highlights that an FE for VAT is not the same as a permanent establishment (PE) for income tax purposes. You may have:

• a PE but no FE, or
• an FE but no PE.

This distinction matters for businesses that assess obligations across VAT, Corporate Income Tax (CIT) and areas such as statutory accounting, local reporting, and group reporting.

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The three conditions of an FE — how to interpret them in practice

An FE assessment is holistic and should reflect the economic reality. The guidance organises the analysis around three conditions that must be met together.

1) Human and technical resources — and real control

To speak about an FE, there must be an identifiable human/technical set-up in Poland (e.g., employees, machinery, systems, infrastructure).

The resources may be:

• owned (own staff, own assets), or
• made available contractually (e.g., lease/rental), but only if the taxpayer exercises control comparable to control over its own resources.

In practice, a clear “higher risk” signal appears where a foreign entity:

• gives day-to-day instructions to personnel in Poland,
• influences work organisation,
• decides how machines/resources are used to perform the supply.

2) A structure enabling the real performance of supplies (not merely support)

An FE cannot be reduced to a site performing only auxiliary/support functions (e.g., recruitment, procurement, quality support, administration). The key question is whether the Polish structure actually enables the supply — and whether the transaction is effectively carried out from Poland.

This is particularly relevant in groups where a related Polish company performs operational, logistics, or administrative functions. Capital or personal links do not create an FE automatically — what matters is the real scope of resources and control.

3) Sufficient permanence — durability and repeatability, not one-off activity

“Permanence” refers to the durability of the human/technical set-up. Even a short period may qualify if activities are repeatable and stem from the nature of the business. Conversely, one-off, ad hoc actions typical of a single project often fail the permanence test.

Indicators of permanence may include:

• long-term contracts securing resources in Poland,
• continuous availability of personnel and infrastructure,
• a repeatable operating model.

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Passive vs active FE — why it matters for KSeF

For KSeF, the crucial distinction is:

• Passive FE: the Polish set-up allows the business to receive/use services for that location (e.g., local admin, support, marketing). This model does not, as a rule, trigger KSeF if the FE does not carry out the supply.
• Active FE: the Polish set-up enables the supply itself (goods/services). This may trigger the obligation to issue structured invoices in KSeF.

For foreign taxpayers, the guidance focuses above all on whether the FE actively participates in the transaction.

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When the FE does not participate —important for admin-only models

The guidance indicates that if Polish resources are used only for administrative tasks (e.g., accounting, invoicing, debt collection), they should generally not be treated as resources used to perform the supply itself.

This is highly relevant for groups that locate shared service centres in Poland or outsource processes to a third party. Such models may reduce the “participation” risk — yet they do not remove the need for a full FE assessment, especially where other functions exist (e.g., logistics, warehousing, production combined with real control).

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How to assess an FE for KSeF – a practical approach

Below is an approach that works well for foreign businesses, particularly in operating models involving logistics, production, construction projects, or permanent teams in Poland.

Step 1: Map the processes that lead to the supply
Identify where essential activities are performed, such as:

• contract negotiation and signing,
• picking/dispatch of goods,
• operational performance of services,
• management of people and resources.

Step 2: Assess human and technical resources in Poland
Determine:

• who the personnel are (own, leased, subcontractors),
• whether the taxpayer gives instructions and exercises control,
• what technical resources exist and whether they are necessary to perform the supply.

Step 3: Verify permanence
Check:

• whether resources are available on a permanent/repeatable basis,
• whether contracts are long-term,
• whether the model is continuous rather than incidental.

Step 4: Decide whether the FE participates in the transaction
For KSeF, the decisive issue is whether Polish resources are used for activities necessary to perform the taxable supply — before or during the transaction.

Step 5: Prepare documentation in case of dispute
It is worth preparing a consistent description of the operating model and a supporting evidence set (contracts, process maps, role descriptions, level of control, decision-making responsibilities). For companies that keep full accounting records in Poland or relocate functions to Poland, this documentation supports a consistent approach across VAT, KSeF, and settlement processes.

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Examples from the guidance — what most often drives the KSeF obligation

The guidance includes numerous scenarios. The most common takeaways that reappear in practice include:

• A Polish office/branch handling marketing, complaints, or support may be a passive FE, but without active participation in supplies it usually does not create a KSeF obligation for sales performed by HQ.
• A warehouse in Poland + personnel available “as own” + goods dispatch from Poland increases the risk of an active FE (with KSeF consequences).
• Contract manufacturing in Poland may lead to an FE if the foreign entity actually directs the operational process, gives instructions, and controls human and technical resources.
• Resources used only for admin functions (e.g., accounting and settlements) may mean no FE participation in transactions even if the back office is extensive.
• Real estate (e.g., an office) can be part of technical resources, but an FE arises only when suitable personnel and real control exist—especially if resources are available “as own”.
• Corrective invoices issued after the FE activity in Poland ends: no FE at the time of correction may mean no obligation to issue the correction in KSeF, even if the original invoice was in KSeF.

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Assessing the buyer’s FE and providing invoices outside KSeF

The guidance also addresses situations where the seller must provide the invoice to the buyer outside KSeF in an agreed manner (e.g., where the buyer has no registered office in Poland and no FE in Poland, or where the buyer’s FE does not participate in the purchase).

It recommends using objective criteria without overly complex analyses, for example:

• if information about the buyer’s FE is missing, assume the buyer has no FE in Poland,
• if the buyer provides a statement on having/not having an FE and on participation, the seller should accept the status reflected in the statement,
• if the buyer uses a Polish tax identification number (NIP) for the transaction and does not provide a “no FE/no participation” statement, the seller may assume the FE participates in the purchase.

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Protection under the guidance — what it does (and does not) cover

The tax explanations are issued under the Polish Tax Ordinance Act (Ordynacja podatkowa) and — generally — following them may provide the statutory protection envisaged in Polish law. At the same time, the guidance highlights limits to that protection (including situations involving anti-avoidance measures, VAT abuse, or measures limiting treaty benefits). In practice, it is worth focusing on a consistent and credible operating model — not only the formal labels attached to structures.

If you need support assessing whether your structure in Poland could be treated as a fixed establishment (FE) and what this means for your KSeF obligations (including how you should issue invoices), please contact the getsix® team.

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If you have any further questions or require additional information, please contact your business relationship person or use the enquiry form on the HLB Poland website.

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