Situation: An ABC SRL company receives an invoice for payroll services from an EU company that has a fixed establishment in Romania.
What are the obligations of the Romanian company from a tax point of view?
Solution: According to article 223 paragraph (1) letter k) of the Fiscal Code, income from services rendered in Romania is taxable in Romania, excluding international transport and services ancillary to this transport.
According to article 223 paragraph (2) of the Tax Code, income of a non-resident, which is attributable to a permanent establishment/designated permanent establishment in Romania, obtained in Romania is not taxed according to the chapter on taxation of non-resident income, but is subject to the tax treatment provided for in Title II or IV, as the case may be.
Please note that the permanent establishment is defined in article 266 of the Fiscal Code from a VAT point of view.
Thus, a taxable person having its place of business outside Romania is considered to be established in Romania if it has a fixed place of business in Romania, i.e. if it has sufficient technical and human resources in Romania to carry out regular supplies of goods and/or taxable services.
The permanent establishment is defined in Article 8 of the Fiscal Code.
A permanent establishment means a place of management, a branch, an office, a factory, a shop, a workshop, as well as a mine, an oil or gas well, a quarry or other places of extraction of natural resources, as well as the place where an activity continues to be carried out with the assets and liabilities of a Romanian legal person that is undergoing a reorganization process provided for in Article 33.
A permanent establishment means a construction site, a construction project, an assembly or erection or supervision activities related thereto, only if the construction site, project or activities last more than 6 months.
If the services are related to the activity carried out by a permanent establishment, they will be included in the income earned in Romania by the permanent establishment and will be subject to the income tax of the permanent establishment.
In this situation of income from Romania will not have the obligation to withhold and pay tax on non-resident income.
If the services are not related to the permanent establishment, the company in Romania withholds 16% non-resident income tax at source and declares it through form 100.
The tax is calculated, i.e. withheld when the income is paid, declared and paid to the state budget up to and including the 25th of the month following the month in which the income was paid. The tax is calculated, withheld, declared and paid, in lei, to the state budget, at the exchange rate communicated by the National Bank of Romania for the day on which the income is paid to non-residents.
Provided that the beneficiary presents the tax residence certificate, the provisions of the double taxation convention signed by Romania with the respective state will be applied.
According to Article 1, paragraph (1) of ANAF Order 2994/2016, with subsequent amendments and additions, Romanian legal entities, resident individuals, as well as foreign legal entities operating in Romania through a permanent establishment/designated permanent establishment are obliged to register contracts/documents concluded with foreign legal entities or non-resident individuals performing services of a construction works nature on the Romanian territory, assembly, supervision activities, consultancy activities, technical assistance and any other services rendered in Romania which generate taxable income.
The registration of these types of contracts is done through form 017 “Declaration of registration of contracts/documents justifying the actual provision of services on the territory of Romania, initial/additional (related) concluded with foreign legal persons or non-resident individuals”.
Legal basis:
- Fiscal Code (approved by Law no.227/2015, published in MO no.688 of 10.09.2015), as amended and supplemented;
- Methodological Norms for the application of the Tax Code (approved by HG no.1/2016);
- ANAF President’s Order no.2994/2016 on the registration procedure of contracts/documents concluded between Romanian legal entities, resident individuals, as well as foreign legal entities operating in Romania through a permanent establishment/designated permanent establishment and foreign legal entities or non-resident individuals.
- anaf.ro/Declaratii electronice.