Law no. 142/2022 for the amendment and completion of the Law no. 227/2015 regarding the Tax Code
Law no. 142/2022 for the amendment and completion of the Law no. 227/2015 regarding the Tax Code published in the Official Gazette no. 502 of 23.05.2022 brings important changes regarding the taxation of gains from transfer of securities and any other operations with financial instruments, including derivative financial instruments, changes that will be applicable starting with January 1, 2023.
The most important changes are:
- The introduction in the category of income from transfer of securities obtained from Romania the income from operations with derivative financial instruments realized through a non-resident intermediary that has in Romania a permanent establishment that has the quality of intermediary;
- Imposing the following obligations for intermediaries defined according to the relevant legislation, investment management companies, self-managed investment companies, alternative investment fund managers, Romanian tax residents or non-residents who have in Romania a permanent establishment that has the quality of intermediary, both for income obtained from Romania, as well as for those obtained from abroad, other than the income from the transfer of investment gold;
- calculation of the gain/ loss for each transfer/ operation performed for the taxpayer;
- calculation, withholding, declaration and payment of the income tax;
- transmission to each taxpayer of the information regarding the total gains/ losses, as well as the tax calculated and withheld at source, in written form or by electronic means, for the transactions carried out during the fiscal year, until the last day of February of the current year for the previous one;
- submission, annually, of the declaration 205.
- Modification of tax rates for capital gains from transfer of securities and from operations with derivative financial instruments carried out by Romanian tax resident entities or non-resident entities who have a permanent establishment in Romania and the quality of intermediary, as follows:
- for securities:
- 1% on each gain from the transfer of securities that have been acquired and sold in a period longer than 365 days, inclusive, from the date of acquisition;
- 3% on each gain from the transfer of securities that have been acquired and sold in a period of less than 365 days from the date of acquisition.
- for transactions with derivative financial instruments:
- 1% on each gain from carrying out operations with derivative financial instruments held for a period longer than 365 days, inclusive, from the date of acquisition;
- 3% on each gain from carrying out operations with derivative financial instruments held for a period of less than 365 days from the date of acquisition.
- The determination of the fiscal value for the calculation of the gains from the transfer of securities and from operations with derivative financial instruments is made by applying the weighted average price method, including the costs related to the transfer/ operation, on each symbol, regardless of the holding period;
- In order to determine the holding period, it is considered that the securities and financial instruments are sold in the same order in which they were acquired, respectively the first entry - the first exit, on each symbol;
- The income tax calculated and withheld at source is declared and transferred to the state budget until the 25th of the month following the one in which it was withheld and it is final;
- Losses obtained from the transfer of securities and from operations with derivative financial instruments, carried out through Romanian or non-resident tax resident entities that have a permanent establishment in Romania and the quality of intermediary, are not carried forward and are not compensated, representing final losses of the taxpayer;
- Romanian tax resident entities or or non-resident entities that have a permanent establishment in Romania and the quality of intermediary, through which non-resident individuals obtain income from the transfer of securities issued by Romanian residents, have the obligation to obtain the tax identification code for the non-resident person who does not have this number, as well as to calculate, withhold at source, declare and pay income tax for non-resident individuals who do not prove residency in a state with which Romania has concluded a double taxation agreement.
The obligations regarding the declaration and payment of the income tax, as well as the method of calculating the gains/ losses from the transfer of securities, from operations with derivative financial instruments and from the transfer of investment gold that are not realized through Romanian tax resident entities or non-resident entities that have a permanent establishment in Romania and the quality of intermediary remain the same.
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