Income from the transfer of the use of goods is income, in cash and / or in kind, from the transfer of the use of movable and immovable property, obtained by the owner, usufructuary or other legal holder, other than income from independent activities.
According to article 292 paragraph (2) letter e) of the Fiscal Code, the transfer, with payment, of the use of a real estate represents an operation exempt from VAT without the right to deduct.
We mention that this operation is not exempt from income tax, aspect regulated by article 83 “Definition of taxable income from the transfer of use of goods” paragraph (1) of the Fiscal Code “(1) Income from the transfer of use of goods are income, cash and / or in kind, arising from the transfer of the use of movable and immovable property, obtained by the owner, usufructuary or other legal holder, other than income from independent activities”
These provisions are supplemented with those of point 19 paragraph (1) of the application rules of this article which expressly regulates the fact that the category of taxable income from the transfer of the use of goods includes income from rents and subleases of movable property and real estate from personal patrimony. According to the provisions of paragraph (2) of point 19 of the norms, the incomes obtained from rents and subleases of real estate are considered those from the transfer of the use of the house, holiday homes, garages, lands and others like that, whose use is transferred based on contracts. rent / sublease, usufruct and the like.
Thus, by renting a real estate from the personal patrimony for which the estimated / realized incomes were reported to the competent fiscal body through the unique declaration, using the personal numerical code, the natural person does not acquire the quality of taxable person from the VAT point of view , at the gross value, before the application of the flat rate 40%, to enter the turnover of 300,000 lei regulated by article 310 “Special exemption regime for small enterprises”.
We specify the fact that the natural person is a taxable person from the VAT point of view only for the activity carried out as an authorized natural person or who carries out a liberal profession.
In the situation where the natural person is a lessor within 5 rental contracts, he is obliged to register fiscally as an authorized natural person (PFA) because he is considered to carry out an independent activity according to the provisions of article 83 paragraph (2): “
(2) The natural persons who realize incomes from the transfer of the use of the goods from the development of a number of more than 5 lease contracts at the end of the fiscal year, starting with the following fiscal year, qualify these incomes in the category incomes from independent activities. of net income for this category. In application of this regulation, an order is issued by the president of ANAF “
We mention that also in this situation, the real estate rental services represent activities exempt from VAT without the right of deduction, without the authorized natural person being obliged to register for VAT purposes, for such economic activities, according to article 316 paragraph ( 1) letter b), even if it exceeds the turnover of 300,000 lei / calendar year, exclusively from such operations.
According to the provisions of Article 310 “Special exemption regime for small enterprises” paragraph (3) paragraph 2 can not be considered that the natural person exceeds the limit of 300,000 lei / calendar year if it carries out only these operations within the scope of VAT “(3) ……. The taxable person who carries out during a calendar year exclusively operations exempt without the right to deduct in accordance with Article 292 shall not be deemed to exceed the limit provided for in paragraph 1. “
It is important to emphasize that the registration for normal VAT purposes will be done when the individual also carries out other operations within the scope of VAT that are not exempt without right of deduction, for example, consulting services, expertise, land sales, buildable, etc., and the limit of 300,000 lei is exceeded from the sum of the exempted operations without the right of deduction and of the operations that would be taxable, if the taxable person were registered for VAT purposes.
Circular MF no.691736 / 14.06.2016 – specifications:
Regarding the registration for VAT purposes of a natural person who carries out several types of economic activities as a taxable person from the point of view of VAT, the provisions of article 266 “Meaning of terms and expressions”, paragraph 1) point 4 of the Fiscal Code adopted by Law no. 227/2015 which expressly regulated the fact that “When a person carries out several economic activities, economic activity means all economic activities carried out by him.”
Regarding multiple activities, in the circular we find the following example: “For example, a taxable natural person, registered in the sense of VAT, carries out several types of activities, respectively activities of accounting expertise, but also activities as an expert evaluator or insolvency practitioner and also occasionally obtains income from intermediation in The economic activity of the taxable person consists of all the taxable activities of that person, so that, for VAT purposes, the same VAT code assigned to the taxable person is used for all categories of operations. registration for VAT purposes according to each category of operations performed by the respective person, being about one and the same taxable person; “
Legal basis:
– Fiscal Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), with subsequent amendments and completions;
– Methodological Norms for the application of the Fiscal Code (approved by HG no. 1/2016);
– Circular MF no.691736 / 14.06.2016.