In the Official Gazette (Part I) no.165 of 27 February 2023 was published the Order of the President of ANAF no.216/2023 on the approval of the Procedure for establishing the tax on income from the lease of agricultural land located in the countryside/the control package of legal entities that own one or more agricultural land located in the countryside, as well as the model and content of some forms:
The document approves the model, content and instructions for completing the following forms:
- 213 Declaration on the income made by the natural and/or legal person from the sale of the control package of legal persons who own one or more agricultural land located in the countryside;
- 214 Application for the determination of the tax on the income of the natural and/or legal person from the seizure, by court order, of agricultural land situated in the countryside/the control parcel of legal persons owning one or more agricultural land situated in the countryside.
- 259 Tax decision on the income of the natural and/or legal person from the seizure of agricultural land situated in the countryside/control parcel of legal persons owning one or more agricultural land situated in the countryside.
Completion of form 213 (instructions):
- The declaration shall be completed and submitted by the natural or legal person who alienates, by sale, the control package of legal persons who own one or more agricultural land located in the countryside and representing more than 25% of the assets referred to in Article 42 paragraph (5) point 1 of Law No 17/2014, to the extent that the alienation takes place before the expiry of 8 years from the acquisition of any of these lands.
- The assets referred to above shall mean the real property of the legal entity representing any land, building or other construction erected on or incorporated into land, recorded in accordance with the applicable accounting regulations.
- Controlling interest is the interest in the share capital/assets of a legal entity held by a natural or legal person, directly or indirectly, and which exceeds 50% of the value/number of equity securities or voting rights, as the case may be.
The declaration shall be submitted to the competent central tax authority within 10 days from the date of the transfer, for the purpose of calculating the tax, on the basis of the legal act by which the legal entity’s control package is transferred by sale.
Completion of form 214 (instructions):
The application shall be completed and submitted by individuals and/or legal entities in order for the competent central tax authority to determine the additional income tax in the case of alienation, by court order in lieu of a contract of sale, of:
- agricultural land located in the countryside, before the expiry of 8 years from their purchase;
- the control package of legal entities owning one or more agricultural land located in the countryside and representing more than 25% of the assets referred to in Article 42 paragraph (5) point 1 of Law no. 17/2014, to the extent that the seizure takes place before the expiry of 8 years from the acquisition of any of these lands.
The application shall be submitted to the competent central tax office together with a copy of the court decision and the related documentation.
Procedure for determining the tax on income from the lease of agricultural land located in the countryside/control package of legal entities owning one or more agricultural land located in the countryside:
The procedure shall be applied by the departments responsible for the management of tax returns for legal entities/individuals within the competent central tax authority , hereinafter referred to as specialized departments.
Form 259 “Tax decision on the income earned by the natural and/or legal person from the encumbrance of agricultural land located in the countryside/control package of legal entities owning one or more agricultural land located in the countryside”, hereinafter referred to as tax decision, is issued by the specialized departments for the purpose of determining the additional tax on income from encumbrance:
a) agricultural land located in the countryside, before the expiry of 8 years from their purchase, if the transfer of ownership is carried out by court decision in lieu of a contract of sale;
b) the control package of legal entities owning one or more agricultural land located in the countryside and representing more than 25% of the assets referred to in Article 42 paragraph (5) point 1 of Law no. 17/2014 on some measures regulating the sale of agricultural land located in the countryside and amending Law no. 268/2001 on the privatization of companies holding in administration privately owned state agricultural land and the establishment of the State Property Agency, with subsequent amendments and additions, to the extent that the transfer takes place before the expiry of 8 years from the acquisition of any of these lands.
Please note that, according to the document, by competent tax authority is meant:
- in the case of natural persons:
– the central tax authority in whose territorial radius the taxpayer has the address where he is domiciled, according to the law, or the address where he actually lives, if this is different from his domicile, for individuals who have their tax domicile in Romania;
– the competent central tax authority , according to the law, for the administration of taxpayers who are natural persons without tax domicile in Romania.
- in the case of legal entities, the competent tax authority for the administration of tax debts owed by the taxpayer.
The tax decision is issued by the specialized department of the competent central tax authority on the basis of the data in form 213 “Declaration on the income realized by the natural and/or legal person from the transfer, by sale, of the control package of the legal persons who own one or more agricultural lands located in the countryside”, or on the basis of the data in the court decision that takes the place of the sale contract, as the case may be.
According to the law, the amount of the additional tax is determined subject to subsequent verification.
If the tax decision is issued on the basis of the data in the court decision, the tax authorities proceed as follows:
- The tax authority within the territorial jurisdiction of the court of first instance sends the decision and the related documentation, within 5 days of receipt, to the central tax authority competent to issue the tax decision.
Within 10 days of receipt of the court decision and the related documentation from the tax authority /instance/taxpayer, as the case may be, the specialized department of the competent central tax authority shall draw up the Report on the determination of the tax base in case the transfer of the ownership of agricultural land located in the countryside/control parcel of legal entities that own one or more agricultural land located in the countryside is made by court decision.
- The report is drawn up in a single copy, endorsed by the head of the specialized department and approved by the head of the tax unit.
- In the case of the alienation, by court decision, of agricultural land located in the extravilan before the expiry of 8 years from the purchase, when establishing the tax calculation base, the specialized department takes into account the income obtained, determined according to the law, and attributed to the taxpayer according to the share held in the alienated land.
- Before issuing the tax decision, the provisions of Article 9 of Law No. 207/2015 on the Tax Procedure Code, as amended and supplemented, shall apply accordingly.
If the decision is issued on the basis of data from form 213, the tax due is determined by applying the tax rate to the tax base declared by the taxpayer.
If the information contained in the declaration, the court decision or the related documentation is not sufficient, the specialised department notifies the taxpayer in order to obtain the information necessary to determine the tax due.
The tax decision is issued by the competent central tax authority within:
a) 10 days after receipt of the “Declaration on the income made by the natural and/or legal person from the sale of the control package of legal persons owning one or more agricultural land located in the countryside” (form 213);
b) 60 days from the receipt of the court decision which takes the place of the sale contract.
The tax decision is issued in two copies: one copy is communicated to the taxpayer, according to article 47 of the Tax Procedure Code; one copy is kept in the taxpayer’s tax file.
Within 24 hours of receiving the information on the date of communication of the tax assessment decisions, the specialised department records the date of communication in the tax records.
At the same time as issuing the tax decision, the specialist department of the competent central tax authority shall generate the Bordero for the distribution to the administrative-territorial units of the amount of ……………., representing additional tax from the sale of agricultural land located in the extra rural area for the month ……………, according to the model approved by the Order of the Minister of Agriculture and Rural Development and the Minister of Finance no. 396/2022/883/2023 for the approval of the Procedure for the calculation, collection and payment of the tax, as well as the declarative obligations established under Article 42 of Law no. 17/2014 on some measures regulating the sale of agricultural land located in the countryside and amending Law no. 268/2001 on the privatization of companies holding in administration public and private land owned by the State for agricultural use and the establishment of the State Property Agency.
When drawing up the statement for the distribution of the tax according to the provisions of Article 42 paragraph (10) of Law no. 17/2014, as amended and supplemented, the specialist department shall take into account the share of the positive difference related to agricultural land located in the extravilan area of a locality in the total positive difference related to agricultural land alienated, according to the law.
The tax decision together with the tax slip drawn up by the specialist department of the competent central tax authority shall be forwarded, by the end of the month in which they were issued at the latest, to the department responsible for the registration of payers.
Legal basis:
– ANAF Order 216/2023 regarding the approval of the Procedure for establishing the tax on income from the alienation of agricultural land located outside the city/the control package of legal entities that own one or more agricultural land located outside the city, as well as the model and content of some forms;
– Fiscal Procedure Code (approved by Law no. 207/2015, published in MO no. 547 of 23.07.2015), with subsequent amendments and additions.