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  • Tax & Legal Flash no. 29
Article:

Tax & Legal Flash no. 29

23 July 2020

Order no. 2148/2020 regarding the amendment and completion of the Instructions for applying the value added tax exemption for the operations provided in art. 294 para. (1) lit. a) -i), art. 294 para. (2) and art. 296 of Law no. 227/2015 on the Fiscal Code, approved by Order of the Minister of Public Finance no. 103/2016

In the Official Gazette no. 628 was published the normative act amending the order 103/2016 (that provides the VAT exemptions for intra-community deliveries, exports, etc.). 

The the most notable amendments are:

  • The deadline for providing the documents in order to justify the tax exemption is amended (from 90 days to 150 days);
  • The necessary documents to prove the intra-community transport of goods (in relation to the quick fixes established by the EU Regulation 2018/1912). In this respect, justifying the VAT exemption for the intra-community supplies of goods shall be fulfilled by having the following documents: 

a) invoice; 

b) documents certifying that the goods have been transported from Romania to another Member State;

  • Another condition for applying of the exemption is that the supplier shall declare the intraCommunity supply into the VAT recapitulative statement. In case a transaction is not declared or is wrongly declared, the exemption shall not apply unless the tax authority considers that the supplier's justification for the errors occurred is reasoned and the transaction is declared in the recapitulative statement.
  • Additional documents will be required in order to justify the transport of goods, as follows: 

1. The transport is performed by the supplier: 

➢ the transport of goods should be justified based on at least two items of non-contradictory evidence from the documents related to the type of transport carried out (signed CMR, a bill of lading, an airfreight invoice or an invoice from the carrier of the goods) which were issued by two different parties that are independent of each other, of the vendor and of the acquirer; 

➢ or, based on an item from the ones mentioned above and a conclusive proof of other documents issued by two different parties that are independent of each other, of the vendor and of the acquirer; 

a) an insurance policy with regard to the transport of the goods; 

b) bank documents proving payment for the transport of the goods; 

c) a receipt issued by a warehouse keeper in the Member State of destination, confirming the storage of the goods in that Member State.’; 

d) official documents issued by a public authority, such as a notary, confirming the arrival of the goods in the Member State of destination 

2. The transport is performed by the buyer 

➢ the transport of goods should be justified based on the same documents as those presented above (in case the vendor would organise the transport of goods), furthermore, being necessary a written statement stating that the goods have been dispatched or transported by the acquirer, or by a third party on behalf of the acquirer, and identifying the Member State of destination (the date of issue; the name and address of the acquirer; the quantity and nature of the goods; the date and place of the arrival of the goods; in the case of the supply of means of transport, the identification number of the means of transport; and the identification of the individual accepting the goods on behalf of the acquirer) - must be provided to the vendor by the 10th day of the month following the supply.

  • Are given more details regarding the application of the exemption for intra-community supplies of goods for situations that do not fall within the presumption provided in art. 45a of Regulation 282/2011, the transport of goods from Romania to another Member State is justified according to the provisions of this article. Such situations may be, but not limited to, those in which: the transport of goods is carried out with their own means of transport by the supplier or buyer, the goods that are the subject of delivery are means of transport that move on wheels, by road sea, river or air, the persons involved in the transport of the goods are not independent of each other and of the seller and the buyer or their independence cannot be proved;
  • The manner of applying the VAT exemption to exports of goods performed by a person (EU or non-EU) who is not a customs exporter (entry of identification data and invoice in box 44 of the DVE);
  • The VAT exemption for transport services (and other services) directly related to the export of goods is applied only by the person invoicing the exporter / consignee of the goods (transposal of case C-288/16 LC, respectively the clarification that the exemption does not apply in the chain by the carrier and the shipping companies);
  • Amendments are brought regarding the documents necessary to justify the VAT exemption regarding for processing of tangible movable goods, the intra-community deliveries of new means of transport, the intra-community deliveries of excise goods;
  • Clarifications are provided regarding the VAT exemption for loading / unloading services on / from a ship assigned to sea navigation and the VAT exemption for aircraft. Law no. 136 of July 18, 2020 on the establishment of measures in the field of public health in situations of epidemiological and biological risk provides the following aspects:  
  • The list of infectious diseases for which the isolation of persons is established at their home, at the location declared by them or, as the case may be, in health units or in alternative locations attached to them, as well as the list of basic health units in which sick persons are treated is established by Government Decision.
  • The isolation measure must: 

1. be established for a limited time, in a non-discriminatory manner and in proportion to the factual situation that determines it;

2. aim to prevent the spread of an infectious disease, dangerous to human safety and public health; 

3. be established in order to protect the public interest and not to cause an imbalance between the need to protect public health and the imperative to respect the person's freedom.

  • Home isolation or at a declared location cannot be ordered in situations where official information regarding the type of highly pathogenic agent, the route of transmission and the rate of transmissibility require the isolation of persons exclusively in health facilities established by Government Decision.
  • All administrative acts of a normative nature regarding the establishment, modification or termination of the measures of this law may be challenged by any person who considers himself harmed in his right or in a legitimate interest at the competent court of law, with an action for annulment in the competent court, both for reasons of illegality and unfoundedness, within 5 days from the publication of the administrative act in the Official Gazette of Romania or from the date of taking note of the content of the act in case of non-publication.
  • If a person does not comply with the measure of home isolation or at the location declared during it, even though he has previously consented to this measure, the doctor or, as the case may be, the control bodies will immediately inform the County Public Health Directorate or or the Bucharest Public Health Directorate, which can confirm or refute the measure of isolation recommended by the doctor, in the health unit, by individual decision. The decision will contain mentions regarding the date and issuer of the act, the name and identification data of the quarantined person, the duration of the measure and the appeal provided by law.
  • In order to prevent the spread of infectious disease, until the communication of the decision of the court of law to annul the contested administrative act, the person concerned may not leave the location where he is isolated without the consent of the doctor or of the public health representative.
  • The orders of the head of the Emergency Situations Department or of the person designated by him can be challenged by any person who considers himself injured in his right or in a legitimate interest at the competent court of law, under the conditions of Law 136/2020. 

 

Order no. 2100/2020 for the approval of the procedure of cancelling ancillary obligations 

The procedure of cancelling ancillary obligations provides the following:

  • The debtors that can benefit of the facilities provided by the procedure are: 

➢ all categories of debtors, as natural or legal persons, regardless of the ownership; 

➢ associations and other entities without legal personality; 

➢ natural persons who carry out economic activities independently or exercise free professions; 

➢ administrative-territorial units or administrative-territorial subdivisions of Bucharest municipality; 

➢ public institutions.

The central fiscal body or, as the case may be, the authorities / institutions that issued the enforceable orders, grant the following fiscal facilities: 

➢ postponement of payment for ancillary obligations remained unpaid on the date of issuing the tax certificate, until the date of solving the application of cancelling ancillaries or until December 15th 2020 inclusive, in case of non-submission of the application; 

➢ cancellation of ancillary obligations;

  • The categories of ancillaries that may be subject to tax facilities are the following: 

➢ interest/increases for late payment; 

➢ late payment penalties/ penalties for not declaring taxes/ penalties; 

➢ any other ancillary obligations.

  • The provisions of the procedure apply to debtors that have been notified by tax decisions related to main budgetary obligations due until March 31st 2020, inclusive, as a result of a tax inspection or check of the personal tax situation in progress on May 14th 2020, regardless of the date of communication of the tax decision.
  • The provisions of the procedure also apply to notifications or applications for cancelling the ancillary obligations submitted after May 14th 2020 and until the entry into force of this procedure, respectively July 20th 2020.