The problem and the current position of the authorities
The delivery of goods to a person impersonating an actual contractor does not constitute a supply subject to VAT and does not generate CIT revenue for the seller. The Supreme Administrative Court reached these conclusions in three judgments issued in May and June 2026: of May 7, 2026, I FSK 1641/23; of May 12, 2026, I FSK 1458/23; and of June 26, 2026, II FSK 838/25.
The fraud scheme is repetitive. The perpetrator uses the data of an existing, credible business (usually foreign), sends correspondence from false email addresses, places an order with a deferred payment date, and specifies a carrier or a changed delivery location. After the payment deadline has passed, the real entity whose data was used declares that it did not place any order.
In each of the cases discussed, the Director of the National Tax Information Service deemed the applicant's position incorrect. The authority assumed that since the seller voluntarily delivered the goods and the recipient was given the right to dispose of them, a delivery of goods (including an intra-Community delivery of goods) had occurred, and the lack of payment did not affect either VAT or the generation of output revenue.
VAT: fraud is not a delivery of goods
The subject of taxation is the supply of goods for consideration, understood as the transfer of the right to dispose of goods as an owner. Intra-Community supply of goods involves the export of goods as part of a supply of goods to an EU country, and therefore also requires prior determination that the supply has occurred.
In case I FSK 1641/23, a company accepted an order from a person posing as a representative of a French contractor, after verifying its status in the VIES system. The goods were delivered to the carrier, and the transaction was documented with invoices, warehouse documentation, and bills of lading. The request for an interpretation covered the VAT classification of the goods delivery and the right to deduct input tax on the production or purchase of the delivered goods. The Regional Administrative Court in Kraków overturned the interpretation in its judgment of January 26, 2023, I SA/Kr 1154/22, and the Supreme Administrative Court dismissed the cassation appeal filed by the Director of the National Tax Information System. The Supreme Administrative Court indicated that delivery requires a transfer of the right to dispose of the goods as an owner to a specific entity and payment, and that the company, acting under the influence of a fraudulent error, did not intentionally and knowingly transfer this right to a specific purchaser.
In the factual circumstances of the Supreme Administrative Court judgment, Case No. I FSK 1458/23, in May 2021, the company, a manufacturer of paper packaging, contacted an individual posing as an employee of a British company, checked the contractor in the VIES database, ordered a report from a credit information agency, and established a 14-day payment deadline. The goods were shipped to France, and the company initially declared intra-Community supply, but then, for prudential reasons, corrected the settlement and declared a domestic delivery at a 23% rate.
The Supreme Administrative Court assumed that the concept of transfer of the right to dispose of goods as an owner is broader than the transfer of ownership under civil law, but always presupposes the supplier's intention to transfer control of the goods to another entity. The court cited the CJEU judgment of 14 July 2005, C-435/03 British American Tobacco and Newman Shipping (ECLI:EU:C:2005:464), in which the Court found that the theft of goods does not involve the consideration typical of a supply for consideration. Although the case did not involve classic theft, the economic meaning of the fraud allowed for the same assessment: the company, misled as to the identity of the buyer, did not transfer the right to dispose of the goods to a known British entity, but delivered the goods to the fraudster. The transaction was not for consideration, as an unidentified person unlawfully acquired possession of the goods and failed to pay.
The thesis of judgment I FSK 1458/23 covers a situation in which a taxpayer, while exercising due diligence and documenting a completed delivery, becomes a victim of crime, loses the goods, and does not receive payment. Given the lack of intent to transfer ownership to an unknown buyer and the absence of payment, the right to dispose of the goods as an owner is not transferred. Due diligence is therefore a necessary element for non-taxation.
CIT: no amount due, no income
Pursuant to Article 12, Section 3 of the CIT Act, revenues related to business activities also include revenues due, even if they have not yet been actually received. The date of their creation is generally deemed to be the date of delivery of the item (Article 12, Section 3a of the CIT Act). A similar structure is provided for in Article 14, Section 1 of the PIT Act, which makes the discussed position also relevant for entrepreneurs who are natural persons.
In case II FSK 838/25, the company received an order from an entity posing as a French company. Before concluding the transaction, it verified the counterparty in the VIES system, checking its registration data and social media profiles. The goods were delivered, payment was not made, and the actual counterparty denied entering into the contract. The investigation conducted in Poland was discontinued by order of March 13, 2023, and the case was referred to French authorities for further investigation.
The company inquired whether, in exercising due diligence, it was obligated to recognize revenue in the amount of the invoice price issued to the entity whose data was used, and whether it could include the value of the lost goods in its tax-deductible costs. In its interpretation of June 7, 2024, no. 0114-KDIP2-2.4010.227.2021.23.S/KW, the Director of the National Tax Information Office (KIS) found that unpaid receivables also constitute revenue. The Regional Administrative Court in Kraków dismissed the complaint in its judgment of December 19, 2024, I SA/Kr 653/24. The Supreme Administrative Court, however, repealed both this judgment and the interpretation in their entirety.
The Supreme Administrative Court found it decisive that the seller had no entity from which he could effectively pursue payment: the actual contractor denied entering into the contract, and the identity of the perpetrators remained unknown. Since there is no effective claim for payment, there is no amount due within the meaning of Article 12, Section 3 of the CIT Act.
It's important to note the civil law aspects of this situation. If the contract was not effectively concluded or the seller effectively evaded the effects of a declaration of intent made under the influence of fraud (Article 86 § 1 of the Civil Code), the amount due does not arise. Evasion occurs through a written declaration submitted to the other party (Article 88 § 1 of the Civil Code), and in the event of an error, the right expires one year after its discovery (Article 88 § 2 of the Civil Code). In practice, it's difficult to identify the addressee of the declaration when the perpetrator's identity is unknown, which suggests that the declaration should at least be addressed to the contact details used by the fraudster and documented.
The case law is not yet established. Judgment II FSK 838/25 contradicted the first-instance court's position. The scope of the ruling should be assessed cautiously, particularly in situations where the seller knows the buyer's identity and may pursue a claim against them.
Costs: loss in current assets
The lack of revenue and the lack of output VAT do not exhaust the consequences of the event, as the seller incurred expenses to acquire or produce the lost goods. This value can generally be included in the costs of obtaining revenues as a loss in working capital
In tax authorities' practice, deducting such a loss as a cost is accepted, but under strict conditions. First, the taxpayer must demonstrate that they were the victim of fraud and not their own negligence, which requires evidence of pre-transaction verification of the counterparty, such as checking the VIES system, verifying registration records, and maintaining correspondence before delivery. Second, the loss of goods cannot be the result of a breach of basic internal security procedures or a lack of supervision.
The greatest risk concerns the timing of loss recognition, which authorities attribute to its finality. Reporting a crime alone is insufficient. Safe recognition of the cost requires a final decision by law enforcement, specifically a final decision to discontinue the proceedings due to failure to identify the perpetrators, which officially confirms that recovery of the goods or their equivalent is impossible.
The facts of case I FSK 1458/23 illustrate this. The investigation was discontinued, and the district court upheld the decision after considering the company's appeal. The situation is different in case II FSK 838/25, where, after the investigation in Poland was discontinued, the proceedings are continued by French authorities. In such a situation, the authority may question the finality of the loss until the conclusion of the foreign proceedings, which should be taken into account when selecting the settlement period.
Practical conclusions
The rulings in question shift the burden of the dispute from the physical release of goods to the question of the seller's due diligence and the reality of the fraud. The taxpayer will have to demonstrate that they acted in good faith, verified the contractor, and could not have recognized the fraud before the release of the goods. Verification documentation, business correspondence, shipping documents, and payment demands addressed to the actual entity should be secured immediately upon detection of fraud.
On the VAT side, a taxpayer who reported the transaction as a supply should consider correcting the settlement (Article 81 § 1 of the Tax Ordinance). On the CIT or PIT side, it is crucial to document the absence of an entity liable for payment and, prudently, submit a declaration of evasion of the effects of the declaration of intent within the deadline specified in Article 88 § 2 of the Civil Code. The moment of recognizing the loss as a cost should, however, be linked to the final conclusion of the criminal proceedings.
This article is for informational purposes only and does not constitute legal advice.
The law is current as of October 19, 2026.
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