OpANAF (Order of the President of the National Agency for Fiscal Administration) no.1075 of 2021 for amending the model, content, and instructions for completing forms 208 “Informative declaration on income tax from the transfer of real estate from personal patrimony” and 209 “Declaration on income from the transfer of real estate from personal patrimony”, as well as of the model and content of the form 253 Tax decision regarding the income from the transfer of real estate from personal patrimony “, approved by OMFP (Ordinance of the Finance Ministry).MJ no.1022 / 2562/2016 regarding the approval of the procedures for establishing, paying, and rectifying the income tax from the transfer of real estate from the personal patrimony and of the model and content of some forms used in the administration of the income tax was published in the Official Gazette no. 673 of July 8, 2021.
We specify that the analyzed normative act is addressed to the notaries public before whom the contracts of transfer of the property rights over the constructions of any kind or over the lands are signed or who carry out succession debates generated by the death of a natural person.
The initiators specify, in the Report approving the normative act, that, according to Law no. 104/2020 for completing article 60 point 1 of Law no. 227/2015 on the Fiscal Code, the revenues from the transfer of the property right and its dismemberments as inheritance, in the case of individuals with severe or severe disabilities, are exempt from paying income tax, regardless of the time of the succession debate. At the same time, according to the provisions of article 101 paragraph (3) of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, the obligation to submit the fiscal declaration is maintained even if the respective fiscal obligation is exempted from payment, according to legal regulations.
From the fiscal point of view, the taxation procedures and the declaratory obligations are regulated by article 111 and article 113 of the Fiscal Code. Here are some important aspects:
Upon the transfer of the property right over the real estate property from the personal patrimony of a natural person, he benefits from a tax exemption for a non-taxable income in the amount of 450,000 lei allocated for each transaction.
In the conditions in which the building is owned in co-ownership by two or more assignors, the tax-exempt income is allocated to each co-owner in proportion to the share of ownership by reference to the ceiling of 450,000 lei.
If the income realized from the transfer of the real estate property from the personal patrimony of a natural person exceeds the amount of 450,000 lei, over the income that exceeds this non-taxable ceiling, an income tax of 3% is due. The tax is calculated and collected by the notary public and is paid to the state budget until the 25th of the month following the month in which it was withheld.
In case of transfer of the property right over some real estate, within the succession procedure, no tax is due if the succession is completed within 2 years from the date of death of the author of the succession.
In the conditions in which the debate of the succession is completed after the term of 2 years from the date of the death of the author of the succession, the heirs owe a tax in the percentage of 1% applied to the value of the succession mass.
Public Notaries have the obligation to submit semi-annually to the fiscal authority declarations regarding these transfers of the property right.
Order no. 1075 of 2021 updates the forms of the following declarations and forms:
– Form 208 „Informative declaration regarding the income tax from the transfer of real estate properties from personal patrimony“;
– Form 209 „Declaration regarding the incomes from the transfer of the real estates from the personal patrimony“;
– Form 253 “Tax decision regarding the income from the transfer of real estate from personal patrimony”.
– Declaration 208 regarding the income tax from the real estate transfer is submitted until the 25th of the first month of the semester following the concluded one.
As mentioned above, the novelty consists in the fact that, in D208, the tax-exempt transactions will be declared when the person who generates income is a disabled person and benefits from this tax exemption according to the Fiscal Code.
This declaration is an informative one and includes the details regarding the contracting parties, the tax due for each transaction, the method of transferring the property right, the market value, the transfer value, and the notarial fees.
Form 209 is a statement regarding the income from the transfer of real estate from personal patrimony when the property is transferred by a procedure other than the notarial procedure, for example, following a court procedure.
The declaration is submitted by the natural person to the fiscal authority in order to calculate the tax within 10 days from the date of the document attesting the transfer of the property right.
The fiscal authority calculates the tax due by the natural person and issues the taxation decision – Form 253.
The tax due by the natural person must be paid within a maximum of 60 days from the receipt of the taxation decision.
Legal basis:
– Fiscal Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), with subsequent amendments and completions;
– OpANAF no.1075 / 2021 for the modification of the model, content, and instructions for completing the forms 208 ” Informative declaration regarding the income tax from the transfer of real estate from personal patrimony ” and 209 ” Declaration regarding the income from the transfer of real estate properties from personal patrimony ”, as well as the model and content of form 253 ” Taxation decision regarding the income from the transfer of real estate from personal patrimony ”, approved by the Order of the Minister of Public Finance and of the Minister of Justice no. 1,022 / 2,562 / 2016 regarding the approval of the procedures for establishing, paying and rectifying the income tax from the transfer of real estate properties from the personal patrimony and the model and content of some forms used in the administration of the income tax.