Under the current regulations, the intra-Community distance sale of goods means a supply of goods dispatched or transported by or on behalf of the supplier, including where the supplier intervenes indirectly in the transport or dispatch of the goods, from a Member State other than that in which the dispatch or transport of the goods to the customer takes place, if the following conditions are met:
a) the supply of goods is made to a taxable person or a non-taxable legal person whose intra-Community acquisitions of goods are not considered taxable transactions in Romania under Article 268(4) and (8) (a) and Article 3151(9) or the corresponding of these Articles in the legislation of the Member State of destination, if this is other than Romania, or to any other non-taxable person;
b) the goods supplied are not new means of transport or goods supplied after assembly or installation, with or without trial operation, by or on behalf of the supplier.
Please note that distance selling is governed by Article 275, paragraph (2) of the Tax Code, which states that, by exception to the provisions of paragraph (1) (a), the place of delivery in the case of intra-Community distance sales of goods is deemed to be the place where the goods are located when the dispatch or transport of the goods to the customer is completed.
Thus, a Romanian company is obliged to register for VAT in the Member State where it makes distance supplies.
The threshold for taxable persons carrying out the transactions referred to in Article 275(2), i.e. 10,000 euro/46,337 lei, is made up of services supplied to taxable persons in other Member States and supplies of goods transported to another Member State.
It is very important to point out that the use of the OSS is optional, the simplification being that the system offers the opportunity for companies selling at a distance to stop registering and declaring VAT in each of the Member States in which they are liable for VAT, but to benefit from electronic services to fulfil these obligations via the Member State of identification.
We underline the fact that this system can only be used if the supplier in Romania is registered for VAT purposes in Romania under either article 316 or 317 of the Fiscal Code:
“For taxable transactions carried out under this special scheme, the taxable person shall use only the VAT registration code allocated by the Member State of registration. Where Romania is the Member State of registration, the registration code used by the taxable person shall be the one allocated to him under Article 316 or Article 317.”
If the supplier in Romania does not have a valid VAT code (either according to Article 316 or a special one according to Article 317) at the time of exceeding the threshold of 10.000 euro, then that supplier cannot apply OSS, but has to register for VAT purposes in each Member State where he makes distance supplies.
According to the Registration Procedure for the use of one of the special regimes (approved by OPANAF no.1387/MO 853 of 07.09.2021), the simplified OSS regime (also called EU regime) implies the following requirements to be fulfilled by the Romanian supplier:
1) to submit electronically a declaration of commencement of activity to the competent tax authority , the declaration is completed online, on the ANAF website, in the OSS section, electronically signed;
2) to be registered for VAT purposes in Romania;
3) not to be already registered for the use of that special regime in another Member State;
4) not to be in the period in which he/she is prohibited to use the special regimes point 10 paragraph (1) letter b) of the procedure.
After completing and submitting this declaration, the supplier (applicant) will receive, also electronically:
- either the decision approving the use of the OSS scheme;
- or the decision rejecting the application.
In case of approval of the application (decision), the OSS scheme can be applied from the following dates:
- starting with the first day of the calendar quarter following the submission of the declaration of commencement of activity, correctly completed point 17 paragraph (1) of the procedure;
or
- if the first supply of services or the first delivery of goods, which may be subject to the EU scheme, is made before the first day of the calendar quarter following the submission of the declaration of commencement of activity, the special scheme shall apply from the date of the first supply, provided that the taxable person notifies the tax authority of the commencement of his activities which may be subject to the special scheme by the 10th of the month following the first supply. The notification shall be made by submitting, in electronic format, the declaration of commencement of activity provided for in point 6 paragraph (1) of the procedure, respectively in point b.1) above point 17 paragraph (2) of the procedure.
Submission of declarations:
If the supplier has received the approval of the request for use of the OSS, from one of the two dates of use of the simplified scheme, he is obliged to submit to ANAF, only electronically, by electronic signature, the special VAT return 398 by the end of the following month after the end of each calendar quarter, regardless of whether or not goods have been supplied or services have been provided for which the special scheme is used article 315 paragraph (6) tax code.
Please note that legal entities registered for VAT purposes according to Article 316 of the Tax Code shall submit both the tax return form D300 and the special VAT return form 398.
Legal persons registered for VAT purposes in accordance with Article 317 shall submit only the special VAT return form 398 for the special scheme for the tax due in each Member State of consumption.
The special VAT return form 398 (VAT Return One Stop Shop) shall be drawn up and submitted in accordance with the rules laid down in Articles 314, 315 and 315^2 of Law 227/2015 on the Tax Code.
The VIES recapitulative declaration form 390 is not subject to reporting for invoices issued to non-taxable persons in the EU. Form D390 VIES “Summary declaration on intra-Community supplies/purchases/borrowings” is drawn up according to the instructions for completion approved by OPANAF 705/2020.
Legal basis:
– ANAF Order 1387/2021 for the approval of the Registration Procedure in order to use one of the special regimes for taxable persons who provide services to non-taxable persons or carry out distance sales of goods, as well as for the declaration of value added tax, according to the provisions of article 314, article 315 and article 315^2 of the Fiscal Code, in the situation where Romania is a member state of registration, as well as for the modification of some procedural provisions;
– Order 705/2020 for the approval of the model and content of the form (390 VIES) “Recapitular declaration regarding intra-community deliveries/acquisitions/services”;
– Fiscal Code (approved by Law no. 227/2015, published in MO no. 688 of 10.09.2015), with subsequent amendments and additions;
– Methodological norms for the application of the Fiscal Code (approved by HG no. 1/2016).