Situation: A company ABC SRL has a profit distributed on dividends at the balance sheet of 2018 the amount of 60,000 lei. For this amount, the company paid the dividend tax on 25.01.2019, the difference remaining in the 457 accounts, unpaid until 01.09.2019.
The company has only one associate, and the payment of dividends to it was made in OctoberàDecember 2019, on different days, each 10,000 lei/day.
What are the consequences regarding the reporting of transactions according to Law no.129 / 2019, from the perspective of the accounting expert who keeps the accounting of the company in question? Are there other tax risks?
Solution:
Aspects related to Law no. 129/2019:
According to art.5 paragraph (1) letter.e) of Law 129/2019 for the prevention and combating of money laundering and terrorist financing, as well as for the modification and completion of some normative acts, we specify that the accounting experts have the quality of reporting entities.
Therefore, they are obliged to submit the reports for suspicious transactions provided in art.6 of the law, respectively the reports for which there are no suspicion indicators provided in art.7 of the law, including the report on transactions in cash, in lei or in currency, whose minimum limit represents the equivalent in lei of 10,000 euros.
From the situation presented, it is clear that cash dividends were paid to the sole shareholder in the amount of 60,000 lei – 3,000 lei tax = 55,000 lei, so well above the 10,000 euro limit.
Normally the reporting obligation would rest with the company itself (as a client of the accounting expert) and not with the accounting expert directly. This obligation does not exclude the obligation of the accounting expert to submit a report for suspicious transactions, in case of suspicion indicators according to art. 6 of Law 129/2019.
We remind the fact that in art. 6 its is specified that the reporting entities are obliged to submit a report for suspicious transactions exclusively to the Office if they know, suspect or have reasonable reasons to suspect that:
– the goods come from the commission of crimes or are related to the financing of terrorism; or
-the person or his / her representative/representative is not who he claims to be; or
– the information that the reporting entity holds may be used to impose the provisions of the present law; or
– in any other situations or regarding elements that are likely to raise suspicions regarding the character, economic purpose or motivation of the transaction, such as the existence of anomalies with the customer profile, as well as when there are indications that the data held about the client or – the real beneficiary are not real or topical, and the client refuses to update them or offers explanations that are not plausible.
We mention that at art.7 it is mentioned the obligation to report to the Office the transactions in cash, in lei or in currency, whose minimum limit represents the equivalent in lei of 10,000 euros.
Failure to comply with the provisions of art. 6 or 7 of Law 129/2019 represents a contravention, which is sanctioned with substantial fines under the conditions provided for in art.43 of the law.
Aspects related to Law no.70 / 2015:
Besides the aspects related to the prevention and combating of money laundering in Law no. 129/2019, the provisions of Law 70/2015 for strengthening the financial discipline regarding cash collection and payment operations and for modifying and completing GEO 193/2002 are applicable. regarding the introduction of modern payment systems.
Therefore, regarding the payment in cash of the dividends, according to art.4 paragraph (4) of Law no. 70/2015 the cash payments operations performed to natural persons representing the value of the dividends are carried out by placing in the daily limit of 10,000 lei to one person, the fragmented cash payments to a person being prohibited, for transactions greater than 10,000 lei.
We underline that the payment can be considered fragmented even if it is made in consecutive days/months, under the conditions in which the obligation of the company representing the dividends distributed to the sole partner and remaining to be paid is based on a single act – the decision of the general meeting by which the profit for dividends was distributed in the amount of 60,000 lei.
According to art.12 paragraph (1) of Law no.70 / 2015, the non-observance of the limit of 10,000 lei constitutes a contravention, if it was not committed in such conditions that, according to the criminal law, it constitutes an offense.
The contravention is sanctioned with a fine of 10% of the amount paid that exceeds the specified limit for this type of operation, but not less than 100 lei.