Tax Flash

Tax Flash no.4/2021 – Ordinance no. 8/2021 regarding the amendment and completion of Law no. 227/2015 regarding the Fiscal Code and Ordinance no. 11/2021 regarding the amendment and completion of Law no. 207/2015 regarding the Fiscal Procedure Code were published in Official Gazette no. 832

01.09.2021 – Ordinance no. 8/2021 regarding the amendment and completion of Law no. 227/2015 regarding the Fiscal Code and Ordinance no. 11/2021 regarding the amendment and completion of Law no. 207/2015 regarding the Fiscal Procedure Code were published in Official Gazette no. 832

From the legislative amendments introduced by the two normative acts, we mention the following relevant changes:

The Fiscal Code

Corporate income tax

• It was introduced the date from which begins the taxable period for the foreign legal entity resident in Romania, according to the place of effective management, as the date of registration with the central tax authorities;
• In order to comply with the provisions of Directive 2011/96/EU, clarifications were brought regarding the conditions for granting the exemption when calculating the tax result of dividends received from the Member States of the European Union;
• Starting with January 1, 2022, the destructibility limit of the adjustments for the depreciation of receivables is increased from 30% to 50%. Also, the amendment on the full deduction of adjustments for depreciation of receivables from 1 January 2022 is repealed;
• New provisions are introduced regarding the rescheduling of profit tax regulated by art. 40^3 of the Fiscal Code (i.e. regarding the fiscal regime of transfers of assets, fiscal residence and/or economic activity carried out through a permanent establishment for which Romania loses the taxation right), for the situation in which, when granting the payment rescheduling, there is a real and demonstrable risk of non-recovery of the budget receivable;
• The scope of dividend tax was extended to include all situations of dividend distribution, according to the law, which was not paid until the end of the year in which their distribution was approved.

Tax on income

• Clarifications are provided on the calculation of the income tax due for income with a value higher than the non-taxable ceiling, obtained from gambling like casinos, poker clubs, slot machines and lotteries;
• New provisions are introduced regarding the incomes obtained by other persons than the holder of the property right, former owner or his legal or testamentary heirs, from the National Authority for Property Restitution;
• It is introduced the taxpayer’s possibility to submit the form 230 “Application for the destination of the amount representing up to 3.5% of the annual tax due” to non-profit entities / religious units. The non-profit entity/cult unit has the obligation to send, by electronic means, to the competent tax authorities a form by which it centralizes the requests received from taxpayers in accordance with the procedure to be established.

Social contributions

• The possibility for the Romanian resident tax employer or the employer who is not a Romanian tax resident and who falls under the applicable European legislation in the field of social security, to opt for the calculation, withholding and payment of compulsory social security contributions in case of salary income derived by individuals representing benefits, in cash and/or in-kind, from third parties who are not Romanian tax residents.
• It is clarified the tax regime for dividends distributed quarterly but not paid until the end of the year in which they are distributed. Thus, for dividends distributed quarterly and for those distributed after the approval of the annual financial statements, but which were not paid to shareholders until the end of the year in which their distribution was approved, the dividend tax should be declared and paid until January 25, the following year, respectively until the 25th of the first month of the modified fiscal year, following the year in which the distribution of dividends was approved, as the case may be;
• In order to comply with the provisions of Directive 2011/96 / EU, clarifications are introduced on the conditions for granting the tax exemption for dividends paid to residents in the Member States as well as the EEA States, if the latter and the income payer is subject to corporate income tax or a substitute of this;
• New provision has been introduced according to which the fiscal residence certificates submitted through the Virtual Private Space can be accepted in copy having the mention “in accordance with the original”;
• It is clarified that the informative declaration for the income subject to withholding tax should be also submitted by the income payer, if the tax is borne by the income payer.

Value added tax

• The concepts of “intra-Community distance sales of goods” and “distance sales of goods imported from third countries” have been clarified, in the context of the practical application of the new VAT rules in the field of electronic commerce;
• The possibility for taxable persons who have their registered office in Romania to apply the EU regime without waiving the application of the special exemption regime for small enterprises has been introduced.

Local taxes

• The method of calculating the building tax in the case of mixed-use buildings owned by individuals is simplified, in order to eliminate the current condition regarding the deduction of utility expenses;
• The possibility to choose that the act of sale of means of transport can be concluded in electronic form and signed with a qualified electronic signature, is introduced. It will also be possible to send it electronically in order to deregister/register/the means of transport;
• It is clarified the way of calculating the tax on shows, by specifying that it is calculated by applying a quota to the amount collected from the sale of entrance tickets and season tickets, excluding VAT.

The Fiscal Procedure Code

SAF-T

• The obligation of taxpayers to submit the standard tax control file (SAF-T) i.e. informative statement in connection with accounting and tax records has been introduced.
• The nature of the information that the taxpayer/payer must declare through the standard tax control file, the reporting model, the date/dates from which the categories of taxpayers/payers are obliged to submit the standard tax control file, as well as the procedure for submitting the standard tax control file and the conditions under which the transmission is made, will be approved at a later stage.

Other provisions

• With effect from 1 January 2022, the concept of competence regarding the administration of tax receivables due by individuals carrying out an economic activity or a free profession is revised, as per the legal provisions that will be approved at a later stage;
• The way of providing information and documents between the Ministry of Finance/NAFA and the legal persons of private law is modified in the sense that such will be carried out only through dedicated information systems;
• Starting with March 1, 2022, the obligation of enrollment in the virtual private space (SPV) is introduced, for legal persons, associations and other entities without legal personality, as well as for individuals carrying out a liberal profession or exercising an economic activity independently (only regarding the fulfillment of the obligations or the exercise of the rights as a result of the exercise of the profession, respectively using the fiscal registration code);
• The possibility of correcting tax returns is introduced whenever by a final court decision are established measures that also involve changes in taxes and periods for which the authorities’ right to audit has been canceled.
• The possibility of “re-doing” the tax inspection by the same inspection team that concluded the repealed act is introduced, if for objective reasons, there is no possibility of “re-doing” the tax inspection by another inspection team;
• New provisions have been introduced according to which, the fiscal obligations with future payment terms established in the reorganization plan approved and confirmed in accordance with the law, are no longer considered overdue;
• It is provided that at the express request of taxpayers, erroneous transfers will be corrected, keeping the date of payment, and depending on the date of payment will retain the benefit granted by the legislator to pay half of the legal minimum fine, even if they are not administered by the same tax authorities;
• The procedure for reimbursing the value added tax is modified in the sense of extending the reimbursement mechanism with subsequent control, to all taxpayers with some exceptions expressly established by law, similar to the procedure approved by GEO no. 48/2020;
• It is excluded the possibility of granting of payment facilities for fiscal obligations that represent state aid granted from state sources or resources or managed by the state, as well as European funds or national public funds related to European funds;
• Special rules are introduced regarding the rescheduling of the profits tax due according to art. 40^3 of Law no. 227/2015 on the Fiscal Code (i.e. regarding the fiscal regime of transfers of assets, fiscal residence and/or economic activity carried out through a permanent establishment for which Romania loses the taxation right);
• In order to increase the collection of budget receivables by stimulating voluntary compliance, a permanent rescheduling payment procedure has been introduced, in a simplified form, for the budgetary obligations administered by the central tax authorities;
• Amendments were brought regarding the execution of guarantees by the tax authority in the sense that, in case of a final court decision rejecting the taxpayer’s appeal, the letters of guarantee/insurance policies submitted by the debtor for the purpose of suspending the enforcement is executed after 30 days from the date on which the action is definitively rejected or on the last day of validity of the letter of guarantee/guarantee insurance policy (if it is fulfilled before the 30 days);
• The possibility for debtors to suspend the conditions for maintaining the payments rescheduling is introduced, in case the activity is restricted/closed by the competent state bodies, upon request, until the date when the activity is restarted;
• For the debtors requesting payment facilities after the loss of the validity of the payment rescheduling granted by the tax authorities according to GEO 181/2020, for the main fiscal obligations and/or accessories that remained unpaid from the payment rescheduling, the penalty due according to art. 9 of GEO 181/2020 is canceled.

Cancellation of tax accessories

• In addition to the tax facilities adopted by Government Emergency Ordinance no. 69/2020 and by Government Emergency Ordinance no. 19/2021, it is introduced the possibility to cancel, under certain conditions, interest, penalties and all accessories related to the main budgetary obligations administered by the central tax authorities due prior to March 31, 2020, in the case of taxpayers who were subject to tax inspection, verification of the situation personal tax or documentary verification started, and for which the taxation decision was communicated, after the date of entry into force of GEO no. 69/2020. The amendment remediates a practical problem that arose in connection with the tax inspections started before the entry into force of GEO 69/2020 and completed after the entry into force of GEO 19/2021

The Romanian version of this newsletter is available HERE.