According to paragraph (2), letter e) of art. 291 “Quotas” of the Fiscal Code, the reduced rate of 9% is applied on the basis of taxation for the delivery of the following goods: food, including drinks, except alcoholic drinks, intended for human and animal consumption, live animals and birds of domestic species, seeds, plants and ingredients used in food preparation, products used to supplement or replace food, except those provided in par. (3) letter k). The methodological norms establish the NC codes corresponding to these goods.
According to point 37, paragraph (11) of the rules of application of the Fiscal Code, in the situation in which a package is sold that includes goods subject to both the reduced rate of VAT and the standard rate of VAT, at a total price, and not the main operation can be established, the VAT rate corresponding to each good is applied, insofar as the goods that make up the package can be separated, otherwise it is considered that a single complex operation takes place, applying the standard VAT rate to the total value total of the package
There are exempted the goods granted free of charge, in order to stimulate sales under the conditions provided at point 7 paragraph (10) letter a).
Example 1: When selling goods that have a total price, which includes both foods, alcoholic beverages and cosmetics, the VAT rate for each individual product is applied, to the extent that the goods that make up the total package of goods can be separated. Otherwise, there will be applied the standard VAT rate to the total value of the total package of goods.
Example 2: When selling a stove, if the trader offers a package of spaghetti for free, it is considered that the spaghetti are given free of charge, for the purpose of stimulating sales, and the applicable quota for selling the stove is 19%.”
In the Official Gazette (Part I) no.1037/06.12.2018, there were published, through Ordinance of the Finance Ministry (OMFP) no.3659/2018 the INSTRUCTIONS of unitary application of the provisions of Art. 291 paragraph (2) letter e) and paragraph (3) letter e) of Law no. 227/2015 regarding the Fiscal Code.
Thus, the mentioned document establishes, for the purpose of unitary application of the provisions of art. 291 paragraph (2) lett. e) and para. (3) lit. e) of Law no. 227/2015 regarding the Fiscal Code, with the subsequent modifications and completions, the main elements that are the basis, from the point of view of VAT of the operations performed by taxable persons representing: food deliveries, for which the reduced VAT rate of 9% is applied;
According to the provisions of art. 291 para. (2) lett. e) from the Fiscal Code, a reduced VAT rate of 9% is applied for the delivery of the following goods: food, including beverages, except alcoholic beverages, intended for human and animal consumption, animals and live birds of domestic species, seeds, plants and ingredients used in food preparation, products used to supplement or replace food.
If a taxable person is limited to the delivery of standardized dishes to a location specified by the customer, without any additional element of service provision, or when the delivery of the dishes is the predominant element of the operation, the operation represents a food delivery
The elements of service delivery that normally accompany a food delivery and are its accessories, not being able to lead to the classification of the operations as services from the point of view of VAT, include: presentation of food on the shelf, preparation of food, transport of food to the destination indicated by the customer, cooling or heating of food, packaging of food, making available to the customer of disposable cutlery, supply of paper towels, mustard, ketchup, mayonnaise or similar, the supply of garbage cans, the general presentation of the offer / menu”
Therefore, from the aforementioned regulations, we note that the delivery of food products to a destination indicated by the customer is not considered as providing services – of the nature of the restaurant or catering – being subject to a reduced rate of 9% or standard quota of 19%.
Regarding one of the two quotas (9% or 19%) that apply to the delivered package, the answer is found in the mentioned norms, namely:
- if a package containing goods subject to both a reduced VAT rate of 9% and a standard VAT rate of 19% is sold, at a total price, and a main operation cannot be established, the corresponding VAT rate is applied to each good, to the extent that the goods that make up the package can be separated – so, if the whole package delivery is represented by the delivery of food with 9%, of alcoholic drinks with 19% and of non-food products (disposable tableware, with 19 %, assuming they are not provided free of charge), then there is not a single main operation, for which a single quota, of 19%, is applied, but the VAT quota for each type of delivered product is established and invoiced (9) %), alcoholic beverages (19%), non-food (19%)
- if a package containing goods subject to both the reduced VAT rate of 9% and the standard VAT rate of 19% is sold, at a total price, but a main operation can be established (ie the purpose of delivery is food delivery and of non-alcoholic beverages subject to the quota of 9%, but also disposable tableware, at the cost and at the request of the client, subject to the quota of 19% the main operation being the delivery of refreshments and soft drinks, subject to the quota of 9%), it is considered that a single complex operation takes place, applying the standard VAT rate of 19% to the total value of the package.
Thus, under the condition that there is no single basic operation, but there is both the operation of delivering foodstuffs, subject to a reduced quota of 9%, as well as the operation of delivering alcoholic beverages, subject to the standard quota of 19%, the company must issue the receipt mentioning each product separately, with the corresponding VAT rate
Basically, all these goods delivered can be identified separately, product by product.