Situation:
The administrator of a company ABC SRL, sole partner in the company, without management contract, without individual employment contract goes on external delegation.
Taking into account the current legal provisions, can he be granted per diem, accommodation and transport? Under what conditions?
Solution:
Regarding the daily allowance, according to Article 76, paragraph (2), letter m), point ii) of Law no. 227/2015 on the Fiscal Code, the taxation rules specific to income from salaries also apply to the following types of income, considered assimilated to salaries: (…)
m) allowances and any other sums of the same nature, other than those granted to cover transport and accommodation expenses received during travel to another locality, in the country or abroad, in the interest of carrying out the activity, as provided for in the legal report, by the administrators established according to the memorandum of association, the management contract / mandate, by the directors who carry out their activity on the basis of the mandate contract according to the law, by the members of the board of directors of the companies managed in a dual system and of the supervisory board, according to the law, as well as by the managers, on the basis of the management contract provided for by the law, for the part that exceeds the non-taxable limit thus established:
(i) in the country, 2.5 times the legal level established for the indemnity, by Government decision, for the staff of public authorities and institutions, within the limit of 3 remunerations provided in the legal report;
(ii) abroad, 2.5 times the legal level established for the daily allowance, by Government decision, for Romanian personnel sent abroad for temporary missions, within the limit of 3 remunerations provided for in the legal relationship.
The limit of 3 remunerations provided for in the legal report is calculated by comparing the 3 remunerations to the number of working days of the respective month, and the result is multiplied by the number of days of the period of the trip.
Thus, in the case of administrators established according to the constitutive act or the management/management contract, the limit is established in the same way as for employees, except that the limit of 3 salaries that exists in the case of employees is replaced by a limit of 3 remunerations provided for in the legal relationship (management/management contract, etc.).
In this case, the administrator can receive a per diem if an indemnity is established by an administration contract and/or a resolution of the associates.
If the administrator does not have any remuneration in the administration or mandate contract (and is not an employee), then the non-taxable limit is zero and, as such, the non-taxable limit 3 x 0 = 0 for the per diem is also zero.
According to article 76, paragraph (4), letter j) of Law no. 227/2015 on the Tax Code, (4) the following income is not taxable, in the sense of income tax: (…)
j) allowances and any other sums of the same nature, received during the period of travel, in another locality, in the country and abroad, in the interest of carrying out the activity, as provided for in the legal report, by the administrators established according to the constitutive act, the management contract / mandate, by the directors who carry out their activity on the basis of the mandate contract according to the law, by the members of the board of directors of companies managed under the dual system and of the supervisory board, according to the law, and by managers, on the basis of the management contract provided for by law, within the limit of the non-taxable limit established in paragraph (2)(m), as well as those received to cover transport and accommodation expenses. (…);
Taking into account the above-mentioned regulations, for the settlement of the accommodation and transport costs, the administrator must draw up an expense statement to which he must attach the supporting documents for the tourist services and for the transport carried out in the interest of the company.
Legal basis:
– Tax Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), as amended and supplemented;
– Methodological Norms for the application of the Tax Code (approved by GOVERNMENT DECISION no. 1/2016).