In the Official Gazette (Part I) no.201 of 10 March 2023 ANAF Order no.310/2023 was published for the approval of the model and content of form 101 Tax group “Consolidated declaration on corporate income tax determined by the tax group”, as well as for the amendment and completion of ANAF Order no.3386/2016 for the approval of the model and content of forms 101 “Declaration on corporate income tax” and 120 “Declaration on excise duties”
We remind you that the definition of tax group was introduced by Law 296/2020 to amend and supplement Law no. 227/2015 on the Tax Code, at the end of 2020 (MO nt.1269 of 21 December 2020).
Thus, the corporate income tax group consists of at least two of the following entities, hereinafter referred to as members:
- a Romanian legal person/legal entity with registered office in Romania established under European law and one or more Romanian legal persons/legal entities established under European law in which it holds, directly or indirectly, at least 75% of the value/number of the equity securities or voting rights;
- at least two Romanian legal entities in which a Romanian natural person holds, directly or indirectly, at least 75% of the value/number of the equity securities or voting rights;
- at least two Romanian legal entities owned, directly or indirectly, at least 75% of the value/number of the equity securities or voting rights by a legal/physical entity resident in a country with which Romania has concluded a double taxation convention or in a country with which an agreement on exchange of information has been concluded;
- at least one Romanian legal entity owned, directly or indirectly, in a proportion of at least 75% of the value/number of the equity securities or voting rights, by a legal entity resident in a State with which Romania has concluded a double taxation convention or in a State with which an agreement on exchange of information has been concluded and the permanent establishment/designated permanent establishment in Romania of this foreign legal entity.
The responsible legal entity is the Romanian legal entity/legal person with registered office in Romania established according to the European legislation, member of a tax group in the field of corporate income tax, designated for determining the consolidated tax result of the tax group, filing the corporate income tax return and paying the corporate income tax on behalf of the group.
According to the draft version of the Order 310, the reasons for issuing the document are:
Law no. 296/2020 amended and supplemented Law no. 227/2015 regarding the Fiscal Code, rules being established regarding fiscal consolidation in the field of profit tax.
The new regulations establish the conditions regarding the establishment, modification and dissolution of the fiscal group in the field of profit tax, as well as rules regarding the taxation of the fiscal group. The determination of the consolidated fiscal result of the fiscal group, the filing of the profit tax declaration and the payment of the profit tax on behalf of the group are carried out by the responsible legal entity, designated according to the law.
The responsible legal entity has the obligation to submit a consolidated annual declaration regarding the profit tax owed by the fiscal group.
The declaration is submitted to the competent fiscal authority , together with the annual profit tax declaration of each member of the fiscal group.
Important provisions:
Thus, through the appearance of Order 310/2023, the following are proposed:
– approval of the model and content of form 101 Fiscal group “Consolidated declaration regarding the profit tax determined by the fiscal group”;
– adaptation of the model and content of form 101 “Declaration regarding profit tax” so that it can also be used by members of the fiscal group in the field of profit tax;
– approving the instructions for completing form 101 Fiscal group “Consolidated declaration regarding the profit tax determined by the fiscal group”;
– adapting the instructions for completing form 101 “Profit tax declaration”.
- Form 101 Income Tax Return is amended and completed as follows:
The declaration is also completed by members of the corporate tax group. In this case, tick the box Declaration filed by a member of a tax group in the field of corporate income tax.
Each member of the tax group completes its own declaration, using the assistance software.
The electronically signed declaration is sent to the legal person responsible for the tax group in the field of corporate income tax in electronic format.
Line 39 – is completed with the amount of fiscal losses to be recovered from previous periods, both from activities in Romania and from external sources. Tax losses from previous years, regulated by article 40 of Law no. 227/2015, with subsequent amendments and additions, not recoverable from the taxable profit of the reporting year.
Line 40 – is completed with the amount of the taxable profit/tax loss to be recovered in the following years. In the case of members of a fiscal group in the field of profit tax, the following will be taken into account:
– if, in the current year, the member of a fiscal group registers a taxable profit, the fiscal losses (row 39), recorded by a member of the group before the application of the fiscal consolidation system in the field of profit tax, are recovered in accordance with the provisions article 31 of Law no. 227/2015, with subsequent amendments and additions, by the respective member, only from his taxable profits;
– the tax loss from previous years (the amount entered in line 39) can be deducted within the limit of the taxable profit; – if, in the current year, the member of a fiscal group records a fiscal loss, the fiscal losses (row 39) recorded by a member of the group before the application of the fiscal consolidation system in the field of profit tax are not cumulated with the fiscal loss of the year current;
– the fiscal losses recorded by a member of the group during the application of the fiscal consolidation system are recovered from the consolidated fiscal result of the group; – the amount representing taxable profit/tax loss entered in row 40 is communicated to the legal entity responsible for determining the consolidated tax result of the tax group.
Line 43.1 – enter the amounts representing the expenses of sponsorship and/or patronage, the expenses related to private scholarships, granted according to the law, as well as the amounts representing the expenses related to goods, financial means and services granted to the United Nations Children’s Fund – UNICEF, as well as to other international organizations which carries out its activity according to the provisions of special agreements to which Romania is a party. In the case of members of a tax group in the field of profit tax, lines 41.2, 47, 49, 51-53 of the form are not completed. It is important to note that the provisions of ANAF Order no. 310/2023 applies to the declaration of the annual profit tax due starting with the fiscal year 2022.
- Instructions for completing form 101 Tax group “Consolidated return on income tax determined by tax group”:
Filing the 101 Tax Group return:
The declaration shall be completed and submitted by the legal entity responsible for determining the consolidated tax result of the tax group in the field of corporate income tax by 25 March of the following year/by the 25th of the third month inclusive after the end of the amended tax year.
If at least one of the members of the tax group is subject to the provisions of Article I of OUG no.153/2020 for the establishment of tax measures to stimulate the maintenance/growth of own capital, as well as for the completion of some normative acts, during the period of application of those provisions, the responsible legal entity is obliged to submit the declaration by 25 June of the following year, respectively by 25 June of the sixth month inclusive from the closing of the amended tax year, as the case may be.
The declaration shall be submitted to the competent tax authority for tax administration of the responsible legal entity together with the annual corporate tax return of each member.
If the responsible legal person corrects the filed return, the corrective return shall be drawn up on the same model form, with an “X” in the special space provided for this purpose.
The declaration may not be submitted and may not be corrected after the cancellation of the reserve for subsequent verification, with the exceptions provided for in Article 105 paragraph (6) of Law no. 207/2015 on the Tax Procedure Code, with subsequent amendments and additions, hereinafter referred to as the Tax Procedure Code.
If the responsible legal entity submits the declaration after the cancellation of the reserve for subsequent verification, tick the box “Declaration submitted after the cancellation of the reserve for subsequent verification” and fill in the legal basis for submitting the declaration in the box provided for this purpose.
The consolidated corporate income tax return determined by the tax group shall be completed with the help of the assistance program and transmitted by electronic means of remote transmission, in accordance with the legal provisions in force, together with the annual corporate income tax returns of the members of the tax group (form 101 “Corporate income tax return”), in electronic format.
Each member of the tax group completes its own corporate income tax return (form 101) with the help of the IT support application. The electronically signed corporate tax return is submitted to the legal entity responsible for the tax group in the field of corporate income tax in electronic format.The return is completed and submitted by the legal entity responsible for determining the consolidated tax result of the tax group in the field of corporate income tax on or before 25 March of the following year/on or before the 25th day of the third month following the end of the amended tax year.
If the responsible legal person submits the declaration after the cancellation of the reserve for subsequent verification, tick the box “Declaration submitted after the cancellation of the reserve for subsequent verification” and complete the legal basis for submitting the declaration in the box provided for this purpose.
The consolidated corporate income tax return determined by the tax group shall be completed with the help of the assistance program and transmitted by electronic means of remote transmission, in accordance with the legal provisions in force, together with the annual corporate income tax returns of the members of the tax group (form 101 “Corporate income tax return”), in electronic format.
Each member of the tax group completes its own corporate income tax return (form 101) with the help of the IT support application. The electronically signed corporation tax return is transmitted to the legal person responsible for the tax group in the field of corporation tax in electronic format
Legal basis:
– ANAF Order 310/2023 for the approval of the model and content of form 101 Fiscal group “Consolidated declaration regarding the profit tax determined by the fiscal group”, as well as for the amendment and completion of the Order of the president of the National Fiscal Administration Agency no. 3.386/2016 for the approval of the model and content of forms 101 “Profit tax declaration” and 120 “Excise tax return”
– Law 296/2020 for the amendment and completion of Law no. 227/2015 regarding the Fiscal Code
– 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).