Tax Flash nr. 39

Order no. 3632/2020 on the establishment of competences to perform documentary verification

In the Official Gazette no. 921 from October 9^th,2020 was published the Order no. 3632/2020 on the establishment of competences to perform documentary verification which entered into force on October 9^th, 2020.

According to the Order, the competence to perform documentary verification is granted to all public officers with fiscal inspection attributions within NAFA.

Moreover, the competence to carry out the documentary verification is also granted to the public officers within the General Directorate for Tax Fraud.

Decision no. 864/2020 for the amendment and completion of the Methodological Norms for the application of Law no. 227/2015 on the Fiscal Code, approved by Government Decision no. 1/2016

In the Official Gazette no. 956 from October 16^th, 2020 was published the Decision no. 864/2020 which entered into force on the same day.

According to the decision, the methodological norms are updated in order to correlate with the provisions of the Fiscal Code, as a result of the successive amendments brought to it. Therefore, the most important changes provided are the following:

       1. Corporate income tax:

• the examples of expenses considered deductible when calculating the tax result are completed, being included in this category the expenses registered by taxpayers as a result of participating in compensatory operations regarding procurement contracts for defense, public order and national security needs;

       2. VAT:

• amendment of example no. 2 of point 4 para. (5) of the norms in order to correlate with the provisions of art. 310 and 316 of the Fiscal Code which provide that the natural person who exceeds during the year the exemption threshold has to request the registration for VAT purposes. In this respect, regardless of whether the second transaction is exempted or taxable, the natural person becomes a taxable person after this transaction and has to request the registration for VAT purposes if the cumulative value of the two transactions exceeds the exemption threshold, as the first transaction it would have been taxable;
• clarifications are provided on the applicable VAT treatment to goods granted free of charge. Therefore, is mentioned that it does not represent a delivery of goods the transfer of food intended for human consumption, close to the expiry date of minimum durability, in the situation where it is carried out according to the legal provisions regarding the decrease of food waste;

• a section containing provisions for the application of the rules related to vouchers is introduced;

• is updated the reference to the provision of the Fiscal Code regarding the moment when the chargeable event occurs in case of the down payment charged for the transfer of the use of goods under a leasing contract;

• provisions regarding the VAT treatment related to credit management and / or credit guarantee operations, performed within syndicated credit agreements are introduced;

• regarding the situation in which the taxable person performs a positive adjustment or, as the case may be, has to perform a negative adjustment of the deductible tax, it is provided that the adjustment can be performed both for the allocation of goods and services unused for operations giving the right of deduction and their subsequent allocation for non-deductible transactions. Similarly, is performed the adjustment of VAT related to goods/services in case of cancellation of VAT registration;

• including the occupational pensions in the category of special investment funds, for the administration of which the VAT exemption applies;

• including a provision regarding the possibility of adjusting in favor of the taxable person the tax related to capital goods, in the event of its re-registration for VAT purposes after having the VAT code canceled in certain conditions, whether the capital goods were used for carrying out operations with right of deduction, others than those consisting in the delivery under taxation of the respective goods, during the period when the person had the code canceled;

• in case of taxable persons requesting registration for VAT purposes when reaching or exceeding the threshold or whether they opt for registration, even though the turnover achieved is lower than the exemption threshold, the registration will be considered valid starting with the 1st of the month following the request registration;

• in case of taxable persons who are required to register for VAT purposes (by declaring to reach a certain turnover) or opt for registration, even though the turnover achieved is lower than the exemption threshold, the criteria and the procedure for assessing the intention and ability to carry out economic activities will no longer apply;

       3. Excise duties:

• in order to authorize a fiscal warehouse for the production or storage of energy products, it is provided that the calibration can be performed both by the Romanian Bureau of Legal Metrology and by a metrology laboratory approved by it;
• introducing provisions by which the affected patrimony will be taken into account as the value of the minimum subscribed and paid-in share capital;

• some provisions regarding the method of constituting the guarantees are modified;

• provisions regarding the execution of guarantees are introduced;

• clarifications regarding the minimum limit up to which the guarantee can be reduced in the case of authorized warehousekeepers are introduced;

• the level of the minimum subscribed and paid-in share capital is established in the case of the production of fermented beverages, other than beer and wines (of maximum 1000 hl per year) at 15,000 RON;

• adding a new condition for issuing the end-user authorization by the territorial customs authority, namely, that the applicant does not register outstanding fiscal obligations to N.A.F.A;

• in order to fill in correctly the monthly centralized situation of the acquisitions of excisable products in the EMCS-RO stocks application, respectively for the final stock to be the correct one actually existing at the economic operator, the column “Outgoing quantities” is introduced within the annex no. 19 of Title VIII of the Methodological Norms.