We remind you that the request for restructuring the budgetary obligations can be submitted until January 31, 2022, under the sanction of forfeiture. This term is provided by Ordinance no. 6/2019 on the establishment of fiscal facilities.
According to the mentioned document, in order to revitalize and avoid the opening of insolvency proceedings, debtors, legal entities of public or private law, with certain exceptions, may restructure their main budgetary obligations outstanding on December 31, 2020 and unpaid until the date of issuing the fiscal attestation certificate, as well as accessory budgetary obligations.
We emphasize the fact that budgetary obligations mean the obligation to pay any amounts due to the general consolidated budget and / or the budgets of central and local public authorities individualized in enforceable titles issued according to law, existing in the records of the central fiscal authority, for recovery.
There are the main outstanding budget obligations as of December 31, 2020 and the budget obligations declared by the debtor or established by the competent fiscal authority by decision after January 1, 2021 related to the fiscal periods up to December 31, 2020, as well as the main fiscal obligations due in the period between the date of entry into force of the EMERGENCY ORDINANCE no. 29/2020 regarding some economic and fiscal-budgetary measures (March 21, 2020) and the date of December 31, 2020 inclusive.
Moreover, the restructuring of budgetary obligations also applies to the main and ancillary budgetary obligations established by authorities other than fiscal authorities, as well as to fines of any kind, sent for recovery to central fiscal authorities after January 1, 2021 until the date of issuance of the certificate. tax certificate in accordance with Article 3 (3).
The following budgetary obligations are not subject to restructuring:
the budgetary obligations which, at the date of issuing the fiscal attestation certificate, fall under Article 167 of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, hereinafter referred to as the Fiscal Procedure Code, within the amount of reimbursed / refunded / paid from the budget;
the budgetary obligations established by administrative acts which, at the date of issuing the fiscal attestation certificate, are suspended under the conditions of article 14 or 15 of the Law on administrative contentious no. 554/2004, with the subsequent modifications and completions. If the suspension of the execution of the administrative act ceases after the date of approval of the restructuring plan and the communication of the decision to facilitate payment, the debtor may request the inclusion in the payment facility of the budget obligations that were suspended or take other measures to restructure budget obligations. For this purpose, the competent fiscal authority communicates to the debtor a payment notice regarding the individualized budgetary obligations in administrative acts for which the suspension of execution has ceased, as well as the decisions regarding the related accessory obligations;
the main and accessory budgetary obligations representing state aid to be recovered.
The provisions of Chapter I of Government Order 6/2019, “Establishment of measures to restructure outstanding budget obligations as of December 31, 2020” are also applicable to the following debtors:
the debtors who lose the payment rescheduling because their cash availabilities, foreseen during the rescheduling period, do not allow its support;
the debtors who have guaranteed the budgetary obligations according to article 210-211 and article 235 of the Fiscal Procedure Code.
In order to benefit from the restructuring of budgetary obligations, debtors must meet the following conditions:
a) not to meet the conditions to benefit from the payment rescheduling regulated by the Fiscal Procedure Code;
b) to present a restructuring plan and a test of the prudent private creditor, drawn up by an independent expert;
c) not to be in the insolvency procedure according to Law no. 85/2014 on insolvency prevention and insolvency procedures, with subsequent amendments and completions, or according to Law no. 85/2006 *), with subsequent amendments and completions (* Law no. 85/2006 was repealed by Law no. 85/2014);
d) not to have been dissolved, according to the legal provisions in force;
e) to have submitted all the fiscal declarations, according to the fiscal vector. This condition must be fulfilled on the date of issue of the tax attestation certificate in accordance with Article 3 (3);
f) to fulfill the test of the prudent private creditor, in the sense of the present ordinance. The prudent private creditor test is an independent analysis, performed on the basis of the premises considered in the debtor’s restructuring plan, which shows that the state behaves similarly to a private creditor, sufficiently prudent and diligent, who would obtain a degree higher recovery of debts in the variant of restructuring compared both with the variant of forced execution, and with the variant of opening the bankruptcy procedure./
The condition from letter e) is also considered fulfilled if, for the periods in which no fiscal declarations have been submitted, the budgetary obligations have been established, by decision, by the competent fiscal authority or the debtor fulfills his declaratory obligations provided by law. within the time limit set in accordance with Article 3 (2).
According to the normative act, the debtor must submit to the competent fiscal authority the request for restructuring the budgetary obligations, together with the restructuring plan and the test of the prudent private creditor.
If, after the issuance of the fiscal attestation certificate, according to article 3 (3), and until the date of submission of the request for restructuring of budgetary obligations, budgetary obligations have been extinguished, which may be subject to restructuring, the competent fiscal authority shall automatically issue a new certificate of the fiscal attestation, which it communicates to the debtor in order to adjust the restructuring plan, if it has not already been adjusted. In this case, the budgetary obligations included in the fiscal attestation certificate that may be subject to restructuring shall not be extinguished until the time of submission of the adjusted restructuring plan.
In the analysis of the submitted request, the competent fiscal authority verifies:
a) if the debtor is in difficulty generated by the lack of cash and has the financial capacity to pay in order to benefit from the payment rescheduling according to the Fiscal Procedure Code;
b) if the restructuring plan contains the elements provided for in Article 4 (1) and if it is approved in accordance with Article 4 (12);
if the measures for the restructuring of budgetary obligations comply with the conditions provided for in Article 4 (2), (4) and (6) – (11), as the case may be;
the existence of restructuring measures that ensure the restoration of the debtor’s viability and the fulfillment of the prudent private creditor test based on the analysis provided by the independent expert, according to the definition provided in article 2 paragraph (1) f).
The request for restructuring the budgetary obligations shall be resolved by the competent fiscal authority within a maximum of 30 days from the date of its registration.
In case the restructuring plan contains the measure to facilitate the payment, possibly combined with the measure of cancellation, in part, of some main budgetary obligations and / or with the other measures of restructuring of the budgetary obligations, the fiscal authority proceeds as follows:
a) issues a decision to facilitate the payment of the main budgetary obligations. The payment schedule established in the restructuring plan is an integral part of the payment facilitation decision;
b) issues a decision to defer the payment of interest, penalties and all accessories due by the debtor related to the main budgetary obligations that are subject to restructuring to the payment, except for the ancillary obligations related to the main budgetary obligations representing state aid to be recovered, which must be paid accordingly.
Article 4 (6) (b) (i) and (ii). This decision shall also be issued in the event that the main budgetary obligations provided for in Article 1 (1), (3) and (4) are extinguished by the date of issue of the fiscal attestation certificate;
c) issues a decision to postpone the payment of the main budgetary obligations proposed to be canceled
Legal basis:
– 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;
– Government Ordinance 6/2019 on the establishment of fiscal facilities, with subsequent amendments and completions;
– EMERGENCY ORDINANCE 29/2020 on some economic and fiscal-budgetary measures.