Situation: A company ABC SRL from Romania, non-VAT payer intends to purchase services from a company X, non-VAT payer from Hungary.
Considering that both companies are not paying VAT, does ABC SRL have the obligation to request the special VAT code and to declare the operations in D390?
Solution: First of all, we emphasize the fact that the non-VAT company in Romania, for the purchase of services from a non-VAT company in Hungary, has the obligation to request the special tax code before purchasing the services.
Although company X (from Hungary) is not a VAT payer, it has the quality of a taxable person, within the meaning of art. 269 paragraphs (1) and (2) of Law 227/2015 on the Fiscal Code:
„(1) It is considered a taxable person any person who carries out, in an independent manner and regardless of place, economic activities of the nature of those provided in par. (2), whatever the purpose or result of this activity.
(2) For the purposes of this title, economic activities include the activities of producers, traders or service providers, including extractive, agricultural activities and the activities of the liberal professions or similar. It is also an economic activity to exploit tangible or intangible assets in order to obtain income with continuity”
According to the general taxation rule (art.278, paragraph 2), the operation is taxable in Romania because the place of provision of services is considered to be in Romania:
„278. (2) The place of provision of services to a taxable person acting as such is the place where the respective person receiving the services has established the headquarters of his economic activity. If the services are provided to a fixed headquarters of the taxable person, located in a place other than the one where the person has his headquarters of his economic activity, the place of provision of services is the place where the fixed headquarters of the person receiving the services is located. In the absence of such a place or fixed establishment, the place of supply of services is the place where the taxable person who receives these services has his permanent domicile or habitual residence. “
Thus, according to art.307 paragraph (2) of the Fiscal Code, the company ABC SRL is also the person obliged to pay the tax, because it is a taxable person, the beneficiary of the provision of intra-community services not being applicable any exception from the general rule:
„ART. 307 (2) The tax is due by any taxable person, including by the non-taxable legal person registered for VAT purposes according to art. 316 or 317, which is the beneficiary of the services that take place in Romania according to art. 278 para. (2) and which are provided by a taxable person who is not established on the territory of Romania or is not considered to be established for the respective services on the territory of Romania according to the provisions of art. 266 para. (2), even if it is registered in Romania according to art. 316 para. (4) or (6). “
Therefore, the taxable person who does not pay VAT will request a special tax code before receiving intra-community services, by submitting form 091 “Declaration of registration for VAT purposes / Declaration of mentions of other persons who make intra-community acquisitions or for services”.
The company will be registered for VAT purposes according to art. 317 paragraph (1) point c) of the Fiscal Code and will receive a special tax code, used only for intra-community transactions:
- (1) Has the obligation to request the registration for VAT purposes, according to the present article: c) the taxable person who has established the headquarters of the economic activity in Romania, who is not registered and does not have the obligation to register according to art. 316 and which is not already registered according to letter a), b) or d) or of par. (2), if he receives from a provider, the taxable person established in another Member State, services for which he is obliged to pay the tax in Romania according to art. 307 para. (2), before receiving the respective services ”.
Given that the company will obtain in the future a normal registration code for VAT, based on art. 316 of the Fiscal Code, will have to cancel the special tax code.
We mention that the invoice received from Hungary for the provision of services is issued without VAT, considering that ABC SRL communicates to the supplier the special tax code, valid for VIES.
The intra-community acquisition of services will be registered in the company’s purchase journal.
From a declarative point of view, ABC SRL will complete and submit :
- form D301 “Special value added tax return” regulated by OPANAF 592/2016 with subsequent amendments, until the 25th of the month following the month in which the tax becomes chargeable (tax chargeability usually occurs on the date of issuing the tax invoice);
- the invoice received will be declared in Section 4.1 “Acquisitions of intra-community services, for which the beneficiary is obliged to pay VAT according to art. 307 paragraph (2) of the Fiscal Code”
- the payment of the due tax, presented in form D301, will be made until the term of 25 inclusive of the month following the one in which the exigibility of the tax arises;
- form D390 VIES „Recapitulative statement regarding intra-community deliveries / acquisitions / services regulated by OPANAF 592/2017 with modifications, until the 25th of the month following the month in which the exigibility of the tax arises.
Legal basis:
– ANAF Order 592/2016 for the approval of the model and content of the form (301) “Special value added tax return”
– ANAF Order 592/2017 on amending and supplementing the Order of the President of the National Agency for Fiscal Administration no. 591/2016 for the approval of the model and content of the form (390 VIES) “Recapitulative statement regarding intra-community deliveries / acquisitions / services”
– Fiscal Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), with subsequent amendments and completions;
– Fiscal Procedure Code (approved by Law no. 207/2015, published in the Official Gazette no. 547 of 23.07.2015), with subsequent amendments and completions;
– Methodological Norms for the application of the Fiscal Code (approved by OG no. 1/2016).