In the context of the new VAT rules on electronic commerce applicable from July 1, form 085 was updated by the National Agency for Fiscal Administration (ANAF), in order to be used by taxable persons in Romania who choose to establish the place of delivery in the case of intra-community distance sales of goods.
Thus, the ANAF Order no. 1254/2021, published in the Official Gazette no. 788/2021, aims, in order to accommodate the new VAT rules that came into force on July 1 in terms of electronic commerce, the approval of a new model of form 085, called “Option regarding the application/termination of the application of the provisions of articol 275 paragraph (2) and articol 278 paragraph (5) letter h) of Law no. 227/2015 on the Fiscal Code ”, as well as the content and instructions for completing this form.
More precisely, this order of ANAF is based on the legal provisions recently entered into force regarding the extension of the applicable rules for establishing the place of provision of telecommunications, broadcasting, and television services, as well as services provided electronically and in case of establishing the place of delivery for intra-community sales. of remote goods.
In this sense, according to the legislative amendments, taxable persons established in Romania, who provide services to non-taxable persons established in another Member State of the European Union or who ship or transport goods to another Member State and who have a total value, excluding VAT, of operations, which do not exceed, in the current calendar year, 10,000 euros (46,337 lei) and did not exceed this amount during the previous calendar year, have the right to choose that the place of delivery or service be established in accordance with the provisions of article 275 paragraph (2) and Article 278 (5) (h).
Specifically, it is about the fact that these companies can choose:
- for the place where the goods are located when the shipment or transport of the goods to the customer ends (article 275, paragraph 2); or
- for the place where the beneficiary is established, in the case of telecommunications, broadcasting, and television services, as well as of the services provided electronically (article 278, paragraph 5, letter h).
That option, once selected, applies for at least two calendar years.
The form is registered at the registry of the competent central fiscal body and is sent to the department with attributions in the field of processing the fiscal declarations, hereinafter referred to as the specialized department. The specialized department verifies for each form (085) the correctness of the registration code for VAT purposes of the taxable person by correlating the identification data entered in the form with those existing in the taxpayers’ register.
Within the register of taxpayers is organized, with the help of the computer system, “Records of taxable persons who have opted for the application/termination of the provisions of Article 275 paragraph (2) and Article 278 paragraph (5) letter h) of the Fiscal Code”.
This record must include the following elements:
- a) name of the taxable person;
- b) registration code for VAT purposes;
- c) the date of registration with the competent fiscal body of the form by which the taxable person opts for the application of the provisions of article 275 paragraph (2) and article 278 paragraph (5) letter h) of the Fiscal Code;
- d) the situation in which the taxable person is, respectively opts for the application of the provisions of article 275 paragraph (2) of the Fiscal Code (intra-community sales of goods at a distance) or for the application of article 278 paragraph (5) letter h) of the Fiscal Code telecommunications, broadcasting and television services, and services provided electronically);
- e) the date of submission to the competent fiscal body of the form by which the taxable person opts for the termination of the application of the provisions of article 275 paragraph (2) and article 278 paragraph (5) letter h) of the Fiscal Code;
- f) the situation in which the taxable person is, respectively opts for the cessation of the application of the provisions of article 275 paragraph (2) of the Fiscal Code (intra-community sales of distance goods) or for the cessation of the application of article 278 paragraph (5) letter h) of the Fiscal Code ( provision of telecommunications, broadcasting and television services, as well as services provided electronically).
After processing, the form is archived in the fiscal file of the taxable person registered for VAT purposes.
After receiving the form (085), having ticked section IV, by which the taxable persons opt for the termination of the application of the provisions of article 275 paragraph (2) and article 278 paragraph (5) letter h) of the Fiscal Code, the specialized department checks in the records if the period between the date of submission of this form and the date of submission of the option to apply the same legal provisions is longer than 2 calendar years.
The taxable persons who submit the form (085) having ticked section IV in a period shorter than 2 calendar years from the date of registration of the option to apply these provisions are notified by the specialized department, within 5 working days from the submission of the form, regarding the fact that they do not have the right, according to the provisions of article 2781 paragraph (3) of the Fiscal Code, to waive the application of the provisions of article 275 paragraph (2) and article 278 paragraph (5) letter h) of the Fiscal Code.
Legal basis:
– ANAF Order no. 1254/2021 for the approval of the model, content, and instructions for completing the form (085) ” Option regarding the application/termination of the provisions of article 275 paragraph (2) and article 278 paragraph (5) letter h) of Law no. . 227/2015 on the Fiscal Code ”