Material and intellectual forgery of invoices, unreliable invoices, and criminal and fiscal criminal liability.

The provisions of the Penal Code penalize both material forgery of invoices (Article 270a PC) and intellectual forgery of invoices (Article 271a PC). Criminal liability is imposed on anyone who, in order to use it as an authentic one, forges or alters an invoice in terms of factual circumstances that may be relevant for determining the amount of a public law liability or its return, or for the return of another tax liability, or uses such an invoice as authentic.

Counterfeiting of invoices – responsibility

This is the so-called counterfeit invoices. This crime consists in counterfeiting an invoice so that it comes from another entity and seems authentic, while forging an invoice is making changes to the content of an authentic document without authorization, it may be, for example, making changes to essential data on the invoice.

Criminal liability is also imposed on the person who issues an invoice or invoices containing the total amount of receivables, the value or total value of which is significant, certifying untruth as to the factual circumstances that may be important for determining the amount of public law receivables or their reimbursement or reimbursement of other tax receivables or such invoice or invoices he uses. This is an intellectual forgery of invoices.

It should be mentioned that this crime can only be committed by persons authorized to issue invoices. In addition, the value of invoices must be significant, i.e. above PLN 200,000. The invoice here comes from a legal entity, it is authentic, but we are dealing here with a false certification, e.g. the activity documented by the invoice did not take place.

The threat of punishment in both cases in the basic type is high, i.e. from 6 months to 8 years of imprisonment. In the case of a minor offense (privileged type), the perpetrator is liable to imprisonment for up to 3 years. provides for the perpetrator to be sentenced to imprisonment for a period of not less than 3 years. So what we’re dealing with here is not a crime, but a crime. In the event that these crimes concern an invoice or invoices containing the total amount due, the value or total value of which is greater than ten times the amount of property of great value, i.e. PLN 10,000,000, the perpetrator shall be subject to imprisonment for a period of not less than 5 years or is punishable by 25 years of imprisonment (Article 277a of the Penal Code). Thus, we are dealing here with a similar criminal threat as in the case of forgery of money and securities (Article 310 of the Penal Code). The use of invoices is related to the situation, e.g. concerning their recording in the accounting books and, consequently, in JPK VAT.

The Fiscal Penal Code penalizes issuing an invoice in an unreliable manner as well as using this invoice. We are not dealing here with such importance as in the case of material or intellectual counterfeiting of invoices. The activities of the case are not aimed at deliberately obtaining a tax advantage. The unreliability of the invoice is generally due to the taxpayer’s error. However, in special circumstances, it is not possible to exclude the application of a legal norm regarding the ideal confluence of crimes, i.e. the case when the act meets both the criteria resulting from the provisions of the Penal Code and the Penal and Fiscal Code.


Dr Artur Oleś

Adwokat, Doradca podatkowy, EMBA

Adwokat, doradca podatkowy, doktor nauk prawnych, EMBA, Prezes Sądu Arbitrażowego przy RIPH w Gliwicach. Specjalizuje się w zagadnieniach związanych z optymalizacjami podatkowymi, fuzjach i przejęciach oraz w prawie karnym i karno-skarbowym. Autor publikacji naukowych poświęconych ordynacji podatkowej, podatkowi VAT i dochodom uzyskiwanym za pośrednictwem planów motywacyjnych w postaci akcji oraz opcji na akcje.  Posiada bogate doświadczenie i szeroką wiedzę z zakresu prawa i podatków.

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