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Establishing products with high fiscal risk, marketed in the B2B relationship

ANAF Order no. 12 regarding the establishment of products with high fiscal risk, traded in the B2B relationship was published in the Official Gazette (Part I) no. 27 of January 10, 2022.

We mention that the products with high fiscal risk, traded in the B2B relationship, for which the invoices issued in the national system regarding the electronic invoice RO e-Invoice are transmitted, regulated by EMERGENCY ORDINANCE no. 120/2021 (regarding the administration, functioning and implementation of the national system electronic invoice RO e-Invoice and electronic invoice in Romania, as well as for completing the GOVERNMENT ORDINANCE no. 78/2000 on homol , registration or registration in Romania, as well as the market surveillance for them), and the justification of the classification of the products in this category are provided in the annex which is an integral part of the recently published Order.

Thus, companies that market, in business to business (B2B), vegetables, fruit, water, alcohol, Clothes, shoes, sand, gravel and new buildings, they will send the invoices for them through the e-invoice system, according to order 12/2022.

We remind you that, according to EMERGENCY ORDINANCE 130/2021, the e-Invoice system will become operational for products with high fiscal risk sold in the B2B relationship, starting with April 1, 2022.

Please note that initially, the state electronic invoicing will be optional, and from July 1, 2022 the suppliers will be obliged to send the invoices issued in the national system regarding the electronic invoice RO e-Invoice, regardless of whether or not the recipients are registered in the RO e-Invoice Register.

According to the authorities, by 2023, their plan is to make e-Invoicing a mandatory system for everyone.

  • Through O.ANAF nr. 12/2022 five categories of products considered at high fiscal risk (listed in the Annex to the order) were established, while the reasons for their classification as high fiscal risk were specified for each product:

 Vegetables and fruit:

These are, in particular, NC codes 0701 to 0714 (edible vegetables and certain roots and tubers) and 0801 to 0814 (edible fruits and nuts; citrus peels or melons). The motivation of the authorities shows that, in these cases, there is a low degree of revenue taxation, since, usually, as a result of fiscal controls, the realized revenues are missing from the financial-accounting records.

The nature of the products, respectively their perishable character and their final destination, the high demand, the specific ways of marketing to the final consumer, including the perspective of the heavy use of cash as a way of payment in agri-food markets, make it difficult to restore product traceability and promote tax evasion cited.

Alcoholic beverages:

NC codes 2203 to 2208 are attached here. As for alcoholic beverages, the authorities specify that the risk of tax evasion is very high, a matter which is also referred to by the representative associations in the field.

         “Unequivocally recognized as a preferred area in which the high level of taxation, compared to other products for human consumption whose end price does not include excise duties, influences the decision of some ill-faith taxpayers to engage in tax evasion with these specific products”, according to the order.

 New constructions:

New constructions are those referred to in Article 292(2)(f) of Law No 227/2015 on the tax Code, as amended and supplemented:

“(f) the supply of buildings/parts of constructions and of the land on which they are built, as well as of any other land. By way of exception, the exemption shall not apply to the supply of new constructions, parts of new constructions or built-up land. For the purposes of this Article, the following definitions shall apply:

  1. buildable land represents any arranged or unarranged land, on which constructions can be executed, according to the legislation in force;
  2. construction means any structure fixed in or on the ground;
  1. the delivery of a new construction or part of it means the delivery made no later than December 31 of the year following the year of the first occupation or use of the construction or part of it, as the case may be, following the transformation;
  2. a new construction also includes any transformed construction or transformed part of a construction, if the cost of the transformation, excluding tax, amounts to at least 50% of the value of the construction or part of the construction, excluding the value of the land, after the transformation, respectively the value recorded in accounting in the case of taxable persons who have the obligation to keep accounting records and who do not apply the cost-based valuation method in accordance with International Financial Reporting Standards, or the amount established by an expertise / valuation report, in the case of other taxable persons. If only a part of the construction is alienated and its value and related improvements cannot be determined on the basis of accounting data, they will be determined on the basis of an expertise / evaluation report; “

According to the justification for the construction being classified as a high tax risk, the authorities state that the volume of the transactions and their dynamics, The tax regime, which includes certain specificities and the variety of ways in which the finished product is subsequently used in companies, requires an operational monitoring of transactions in order to prevent tax evasion by early identification of cases of tax non-compliance and the application of the appropriate tax treatment.

Mineral products:

  • The following codes are included for mineral products:
  • CODE NC 2201-2202 including waters, including natural or artificial mineral waters and aerated waters, not containing sugar or other sweetening matter or flavored;
  • CODE NC 2505 – natural sands of all kinds, whether or not colored,
  • CODE NC 2517 – Pebbles, gravel, crushed stone, of a kind generally used as aggregates for concrete or road paving, for railway or other ballast, gravel and flint, whether or not heat-treated;macadam of slag, of metallurgical slag, of similar industrial waste, which even contains materials included in the first part of the heading;tarmac for roads;granules, cracks and powders of stones of heading 2515 or 2516, whether or not heat-treated.

Mineral products revealed a fiscal risk associated with both extraction and subsequent marketing. According to ANAF, natural mineral water is put on the same level of risk as fruits and vegetables, since we are talking about a product for consumption.

At the same time, “the increased demand for mineral aggregates generated by the construction sector, the difficulty of monitoring the entire production and the reconstitution of the quantities of raw materials incorporated in the finished product make it difficult to restore product traceability and favor tax evasion.”

Clothing and shoes:

  • ANAF representatives say that from their controls they found out that these products are often used in tax evasion circuits.

“The mode of action based on the relatively short marketing cycle and characterized by the interposition on the trading circuit of some companies with inappropriate tax behavior that formally take over most of the tax burden, without paying the tax obligations, determines the need for a operative monitoring of the transactions carried out as a premise for the prevention and early discovery of illicit deeds ”, is underlined in the new normative act.

We mention that this is the category that includes the most NC codes from the list of high risk products given by ANAF:

  • CODE NC 6401 – Incaltaminte etansa cu talpi exterioare si fete din cauciuc sau din material plastic, the face of which has neither been fixed to the outer sole by sewing or by rivets, nails, screws, pins or similar devices, nor consisting of various parts assembled by similar processes;
  • CODE NC 6402 – Other footwear with outer soles and uppers of rubber or plastics;
  • CODE NC 6403 – Footwear with outer soles of rubber, plastic, natural or reconstituted leather and natural leather uppers;
  • CODE NC 6404 – Footwear with outer soles of rubber, plastic, natural or reconstituted leather and textile uppers;
  • CODE NC 6405 – Other footwear;
  • CODE NC 6101 – Men’s or boys’ overcoats, shorts, capes, capes, sweatshirts, blazers and similar articles, knitted or crocheted, except for articles of heading 6103;
  • CODE NC 6102 – Women’s or girls’ overcoats, shorts, capes, capes, sweatshirts, blazers and similar articles, knitted or crocheted, except for articles of heading 6104;
  • CODE NC 6103 – Suits or suits, ensembles, jackets, jackets, trousers, bib and brace overalls, shorts and aprons (other than for swimwear), knitted or crocheted, for men or boys;
  • CODE NC 6104 – Tailors, suits, jackets, blazers, dresses, skirts, trousers, trousers, bib and brace overalls, shorts and shorts (other than swimwear), knitted or crocheted, for women or girls;
  • CODE NC 6105 – Men’s or boys’ shirts and blouses, knitted or crocheted;
  • CODE NC 6106 – Shirts, blouses, blouses, knitted or crocheted, for women or girls;
  • CODE NC 6107 – Men’s or boys’ underpants, nightgowns, nightgowns, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted;
  • CODE NC 6108 – Knitted or crocheted suits, petticoats, panties, nightgowns, pajamas, sweaters, bathrobes, bathrobes and similar articles, knitted or crocheted, for women and girls;
  • CODE NC 6109 – T-shirts, blouses and t-shirts, knitted or crocheted;
  • CODE NC 6110 – Jerseys, sweaters, cardigans and similar articles, vests and similar articles, including thin knitwear worn under sweaters, knitted or crocheted;
  • CODE NC 6111 – Clothing and clothing accessories, knitted or crocheted, for infants;
  • CODE NC 6112 – Swimwear, tracksuits and ski suits and suits, briefs and briefs, knitted or crocheted;
  • CODE NC 6113 – Garments made of knitted or crocheted fabrics of heading 5903, 5906 or 5907;
  • CODE NC 6114 – Other articles of knitted or crocheted materials;
  • CODE NC 6115 – Pantyhose, tights, stockings, socks and the like, including compression stockings (for example, for varicose veins) and footwear without applied soles, knitted or crocheted;
  • CODE NC 6116 – Gloves, mittens and mittens, knitted or crocheted;
  • CODE NC 6117 – Other made-up clothing, knitted or crocheted; parts of garments or of clothing accessories, knitted or crocheted;
  • CODE NC 6201 – Men’s or boys’ overcoats, shorts, capes, hoodies, sweatshirts (including ski jackets), wind-jackets and similar articles, except for articles of heading 6203;
  • CODE NC 6202 – Coats, shorts, capes, hoodies (including ski jackets), windcheaters and similar articles, for women or girls, except for articles of heading 6204;
  • CODE NC 6203 – Suits or suits, ensembles, jackets, jackets, trousers, bib and brace overalls, shorts and aprons (other than for swimwear), for men or boys;
  • CODE NC 6204 – Cuts, ensembles, jackets, jackets, dresses, skirts, skirts, trousers, bib and brace overalls, shorts and aprons (other than for baths), for women and girls;
  • CODE NC 6205 – Shirts and shirts with short sleeves for men or boys;
  • CODE NC 6206 – Shirts, blouses, blouses-shirts and short-sleeved shirts for women or girls;
  • CODE NC 6207 – Blouses and t-shirts, panties, essentials, nightgowns, pajamas, bathrobes, dressing gowns and similar articles, for men or for boys;
  • CODE NC 6208 – Blouses and day shirts, overalls or fleeces, petticoats, briefs, nightgowns, pajamas, negligees, bathrobes, dressing gowns and similar articles, for women or girls;

–    CODE NC 6209 – Clothing and clothing accessories for infants;

–   CODE NC 6210 – Clothing made from products of heading 5602, 5603, 5903, 5906 or 5907;

–   CODE NC 6211 – Sportswear (tracksuits), ski suits and suits, suits, briefs and briefs, swimwear; other articles of clothing;

–   CODE NC 6212 – Bras, belts, corsets, suspenders, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted;

– CODE NC 6214 – Shawls, scarves, scarves, mantles, veils, veils and the like;

– CODE NC 6215 – Ties, bow ties and tie scarves; – CODE NC 6216 – Gloves, mittens and mittens with one finger;

– CODE NC 6217 – Other made-up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212;

Legal basis:

– ANAF Order 12/2022 regarding the establishment of products with high fiscal risk, sold in the B2B relationship;

– EMERGENCY ORDINANCE 120/2021 on the administration, operation and implementation of the national system on electronic invoice RO e-Invoice and electronic invoice in Romania, as well as for completing Government Ordinance no. 78/2000 on homol Ordinance, issuing the identity card of the vehicle and certifying the authenticity of road vehicles for placing on the market, making available on the market, registration or registration in Romania, as well as market surveillance for them;

– EMERGENCY ORDINANCE 130/2021 regarding some fiscal-budgetary measures, the Government Ordinance on the issuance of certain deadlines, as well as for the modification and completion of some normative acts.