27 February 2017 is a deadline for the submission to the Minister of Finance, without any summons from the tax authority, information for January 2017 regarding the VAT purchase and sales records kept (SAF_VAT), as referred to in Article 109.3 of the VAT Act.

As of 1 July 2016, the obligation to send the file covers entities classified pursuant to the Act on Freedom of Economic Activity under the category of the so called large entrepreneurs. As of January 2017 also small and medium entrepreneurs are obligated to submit SAFs by electronic way. Only for micro-entrepreneurs the obligation has been deferred until 1 January 2018.

So only an entity which in at least one of the last two financial years:

• employed in a year on the average less than 10 employees, and

• achieved the annual net turnover from the sales of goods, products and services and financial operations not exceeding the PLN equivalent of EUR 2 million or the total assets in its balance sheet drawn up as at the end of one of those years did not exceed the PLN equivalent of EUR 2 million,

is not required, as a micro-entrepreneur within the meaning of Article 104 of the Act on Freedom of Economic Activity, to send a SAF_VAT for January 2017 by 27 February 2017.

Certain doubts may appear when we want to determine a taxable person’s status for SAF purposes where in one financial year such person satisfied the conditions for a micro-entrepreneur, while in the other year it met the criteria for any of the other categories. Both in the case of classification as a micro-entrepreneur as well as a small or medium entrepreneur the regulations stipulate that the conditions have to be satisfied in at least one of the two financial years (whereas a 'large' entrepreneur is deemed to be an entity that cannot be classified under any of the other categories). The Ministry of Finance published on its website explanations that in a situation where an entity in one year satisfies the conditions for being regarded as a micro-entrepreneur, while in the other year it is deemed to be a small entrepreneur, e.g. as a result of hiring more than 10 employees, it may be regarded as a micro-entrepreneur. If the employment level or financial parameters are exceeded only in one financial year, it does not result in losing the above status of an entrepreneur.

In our opinion, the interpretation of the regulations as presented by the Ministry of Finance is in conformity with the logic of law making – if the legislator intended to lay down the regulations according to which in order to have the status of a micro-entrepreneur the entity had to satisfy the indicated conditions in both financial years, it should be stated directly in the regulation.

To sum up, if at least in one of the last two financial years a taxable person:

• employed in a year on the average less than 10 employees and its annual net turnover did not exceed EUR 2 million, or

• employed in a year on the average less than 10 employees and the total assets in its balance sheet did not exceed EUR 2 million,

it will be required to send the first SAF_VAT to the Ministry of Finance only as of 1 January 2018.

In any other case, the information about the purchase and sales records kept (SAF_VAT) should be submitted by 27 February 2017. Failure to comply with that obligation may bring about serious financial consequences for the obligated entity.