Procedure for implementing the provisions of Article 291

In the Official Gazette no. 743 of 16 August 2023 was published the Order of the President of ANAF no. 1226/2023 approving the procedures for implementing the provisions of Article 291^5, paragraph (8) and (9) of Law no. 207/2015 on the Tax Procedure Code.

According to the normative act, the order approves:

Procedure for the implementation of the provisions of Article 2915, paragraph (8) of Law no. 207/2015 on the Tax Procedure Code, as amended and supplemented. The purpose of the procedure is to verify the fulfilment of the tax due diligence and reporting procedures provided for in sections II and III of Annex no. 5 to the Tax Procedure Code.
Procedure for the implementation of the provisions of Article 291^5, paragraph (9) of the Tax Procedure Code. The purpose of the procedure is the subsequent communication with the operators of platforms that have the obligation to report, regarding the complete and correct reporting.
The model of the form “Notification of incorrect and/or incomplete information provided by operators of platforms with reporting obligation”, the instructions for its completion and use, as well as the characteristics of printing and editing, the manner of distribution, use and storage.

In the Approval Reference of the normative act, it is specified that, by adopting the OG no. 16/2023, for the modification and completion of the Law no. 207/2015, a number of European regulations have been transposed into national legislation, by completing Title X “International aspects” – Chapter I “Administrative cooperation in the field of taxation”, with article 291^5, which includes in the scope of application of the mandatory automatic exchange of information and Platform Operators, as defined in Annex 5, section 1, subsection A, paragraph (1) – (11) of the Code of Tax Procedure. “The digitalization of the economy, which has advanced at a fast pace, the mobility of taxpayers, as well as the significant number of cross-border transactions, carried out in the context of globalization, have led to the need to adopt standardized rules in order to regulate the exchange of information in the field of taxation between the Member States of the European Union and to correctly and uniformly assess and control the income from commercial activities carried out through digital platforms,” the Approval Memorandum states.

We remind you that OG no. 16/2023 provides for the obligation of platform operators to submit new types of reports to ANAF, in order to declare annually the economic activity carried out by legal entities and individuals through them and aims to ensure tax transparency in order to prevent tax fraud, tax evasion and/or avoid the declaration of tax obligations resulting from economic activities carried out through digital platforms.

According to Article 291^5, paragraph (1) of the Code of Tax Procedure, the Platform Operators, to whom the reporting obligation is incumbent, must comply with the tax due diligence and reporting procedures set out in Sections II and III of Annex 5.

ANAF clarifies that under subsection G, section II, Annex 5, a Platform Operator that has a reporting obligation may choose to conduct the due diligence procedure under subsections A-F, section II of Annex 5 only with respect to active sellers as defined in paragraph (2), subsection B, section I of Annex 5.

Also, according to Article 291^5, paragraph 4, if a rig operator that has the obligation to report communicates incorrect or incomplete information, the competent authority in Romania shall send a notification to the rig operator in order to provide it with all the necessary information to fulfil its obligation under Article 291^5, paragraph 2.

ANAF may carry out checks and controls, in order to ensure the verification of compliance by the operators of platforms, which have the obligation to report, with the fiscal due diligence and reporting procedures, in accordance with the provisions of Article 291^5 paragraph (8).

Extract of OpANAF 1226/2023:

ANNEX no. 3: NOTIFICATION on incorrect and/or incomplete information provided by the operators of platforms that are obliged to report

(1)_

NATIONAL TAX ADMINISTRATION AGENCY

GENERAL DIRECTORATE FOR TAX FRAUD

Department1) ………………….

_______

1) The regional anti-fraud directorate of the inspectors carrying out the control shall be mentioned, as appropriate.

NOTIFICATION

To: ………………………., having the capacity of platform operator that has the reporting obligation according to Law no. 207/2015 on the Tax Procedure Code (Tax Procedure Code),

Site web: ………………………..

Fiscal Code: ……………………

We inform you that, as a result of the verifications carried out pursuant to Article 2915 paragraph (8) of the Code of Tax Procedure, it has emerged that some of the information submitted by you is incomplete and/or incorrect, as follows:- …………………………………………………………………………………………………………………………..;

In view of the above, we ask you to take all measures to correct errors and complete the information and to send us the correct/complete situation, within 15 days from the communication of this letter, according to the legal provisions.

Failure to comply with the provisions given, under the above conditions, constitutes a contravention according to article 336 paragraph (1) letter 002) of the Tax Procedure Code and is punishable by a fine, according to article 336 paragraph (2) letter p) of the same normative act, unless the act was committed in such conditions that it is considered, according to the law, a crime.

2) Reference shall be made to Article 336(1)(y) of the Code of Tax Procedure, in the case where the platform operator that has the reporting obligation is defined within the meaning of point 4(a) of subsection A of Section I of Annex No 5 to the Code of Tax Procedure, or Article 336(1)(aa) of the Code of Tax Procedure, in the case where the platform operator that has the reporting obligation is defined within the meaning of point 4(b) of subsection A of Section I of Annex No 5 to the Code of Tax Procedure.

Tax due diligence procedure, reporting procedure and other rules for platform operators

Annex no. 5 of the Tax Procedure Code establishes the tax due diligence procedure, the reporting procedure and other rules to be applied by the operators of platforms that have the obligation to report in order to allow the competent authority in Romania to communicate, by automatic exchange, the information provided for in article 291^5, paragraph (2) and (3).

According to Article 291^5, paragraph (2) and (3), under the tax due diligence and reporting procedures set out in Sections II and III of Annex No 5, the competent authority of Romania shall communicate, by means of automatic exchange and within the time limit set out in paragraph (5), to the competent authority of the Member State of residence of the reporting seller, determined under subsection D of Section II of Annex No 5, the information referred to in paragraph (2) and (3). 5, and, where the reporting seller provides letting services of immovable property, to the competent authority of the Member State in which the immovable property is situated, the following information in respect of each reporting seller:

a) the name, registered office address, TIN and, where applicable, the individual identification number allocated pursuant to paragraph 10 of the Reporting Platform Operator and the business name(s) of the Platform(s) for which the Reporting Platform Operator is reporting information;

b) the first name and surname of the Reporting Seller which is a natural person and the legal name of the Reporting Seller which is an Entity;

c) the principal address;

d) any NIF of the Reporting Seller, including each issuing Member State, or, in the absence of a NIF, the place of birth of the Reporting Seller who is a natural person;

e) the Trade Register number of the Reporting Seller which is an Entity;

f) the VAT identification number of the Reporting Seller, if any;

g) the date of birth of the Reporting Seller who is a natural person;

h) the Financial Account Identifier to which the Consideration is paid or credited, to the extent that it is available to the Reporting Platform Operator and if the competent authority of the Member State of residence of the Reporting Seller, within the meaning of subsection D of section II of Annex No 5, has not informed the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose;

i) if different from the name of the Reporting Seller, in addition to the Financial Account Identification Number, the name of the holder of the financial account to which the Consideration is paid or credited, to the extent that the Platform Operator having the reporting obligation is aware of that name, and any other financial identification information of that account holder available to the Platform Operator having the reporting obligation;

j) each Member State of residence of the Reporting Seller, as determined under subsection D of Section II of Annex 5;

k) the total consideration paid or credited in each quarter of the Reporting Period and the number of Relevant Activities for which it was paid or credited;

l) any fees, commissions or charges withheld or levied by the Platform Operator which has a reporting obligation in each quarter of the Reporting Period.

In case the Reportable Seller provides real estate rental services, the following additional information is communicated:
a) the address of each Listed Immovable Property, determined in accordance with the procedure set out in Subsection E of Section II of Annex No 5 and the relevant land register number or its equivalent under the national law of the Member State in which the Immovable Property is located, if available;
b) the total consideration paid or credited in each quarter of the Reporting Period and the number of Relevant Activities corresponding to each Listed Property;
c) if available, the number of days for which each Listed Property was leased during the Reporting Period and the type of each Listed Property.
The following terms have the meaning defined in the following provisions:
Reporting Platform Operator means any Platform Operator, other than an Excluded Platform Operator, that is in any of the following situations:
a) is resident for tax purposes in Romania or in another Member State or, where that Platform Operator is not resident for tax purposes in Romania or in another Member State, but fulfils any of the following conditions:
(i) it is incorporated under the law of Romania or of another Member State;
(ii) it has its place of management, including the place of effective management, in Romania or in another Member State;
(iii)has a permanent establishment in Romania or in another Member State and is not a Qualified Platform Operator from outside the Union;
b) is not resident for tax purposes, is not incorporated or managed in Romania or in any other Member State and does not have a permanent establishment in Romania or in any other Member State, but facilitates a Relevant Activity by Reportable Sellers or a Relevant Activity involving the rental of real estate located in Romania or in another Member State and is not a Qualified Platform Operator from outside the Union.
Relevant Activity means an activity carried out in return for a Consideration and consists of any of the following:
a) the letting of immovable property, including residential and commercial property and any other immovable property and parking spaces;
b) a Personal Service;
c) the sale of Goods;
d) the rental of any means of transport.
The term Relevant Activity does not include an activity carried out by a Seller acting as an employee of the Platform Operator or an Affiliated Entity of the Platform Operator.
Seller means a user of a Platform, who may be an individual or an Entity, and who is registered on the Platform at any time during the Reporting Period and is performing a Relevant Activity.
Active Seller means any Seller who performs a Relevant Activity during the Reporting Period or to whom a Consideration is paid or credited in relation to a Relevant Activity during the Reporting Period.
Reportable Seller means any Active Seller, except Excluded Sellers, who is resident in Romania or in another Member State or who has offered for rent a property situated in Romania or in another Member State.
Legal basis:
– ANAF Order no. 1226/2023 approving the procedures for implementing the provisions of Article 291^5, paragraph (8) and (9) of Law no. 207/2015 on the Tax Procedure Code;
– Tax Procedure Code, as amended and supplemented.