Situation:
An ABC SRL company carries out online trade activities through a dedicated platform in Romania. Recently, the company started selling to individuals in France.
What is the tax treatment, from the VAT point of view, for these types of sales?
Solution:
Through online commerce (electronic commerce) to individuals in France, the company carries out intra-Community sales of distance goods as defined in Article 266 paragraph (1) point 35 of the Tax Code and for which the place of delivery is considered to be the place where the goods are located. when the shipment or transport of the goods to the clients of non-taxable natural persons according to article 275 paragraph (2) of the Fiscal Code ends.
As an exception, the place of delivery of these goods may be the place where the goods are found at the time of dispatch or transport in accordance with Article 275 (1) (a) of the Fiscal Code, if the total value, excluding VAT, of these deliveries does not exceed the annual limit. 10,000 euros (46,337 lei), based on the derogating provisions of article 278 ^ 1 of the Fiscal Code.
In view of the above provisions:
– until reaching the limit of 46,337 lei (10,000 euros) the company will be able to use the usual VAT regime and will issue invoices to individual customers in France with Romanian VAT 19%, considering the place of delivery as in Romania, the operation being treated as a regular local delivery, taxable / taxable in Romania by fulfilling the cumulative conditions of article 268 paragraph (1) of the Fiscal Code. The only difference is that the company must keep a separate record of these sales and declare them separately on row 17 of the D300 VAT return, as well as in the corresponding cartridge of informative data within the D300 form;
– after reaching the limit of 46,337 lei (10,000 euros), the place of delivery of the goods will no longer be in Romania, but in the state where the goods are delivered to non-taxable individuals, respectively in France, which is considered a Member State of consumption. The operation of intra-community sale of goods at a distance will no longer be taxable / taxable in Romania by not fulfilling the condition of article 268 paragraph (1) letter b) of the Fiscal Code corroborated with the provisions of article 275 paragraph (2) and article 278 1 paragraph (1 ) letter b) of the Fiscal Code.
Thus, the VAT related to the deliveries will be due in France, and the Romanian sales company had to collect the VAT from France and pay it to the tax authorities in France.
The obligation to collect and pay VAT in another EU member state (in France) can be fulfilled by the Romanian selling company in two ways:
– direct registration for VAT purposes in France as a Member State of consumption, where the goods are shipped / transported to individual customers, in compliance with the provisions of VAT legislation in this state (issuing VAT invoices and collecting foreign VAT, filing declarations / returns VAT etc.);
– registration in the OSS system (EU special regime) in Romania, in accordance with the provisions of article 315 of the Fiscal Code and of the Procedure approved by OPANAF 1387/2021, with the (optional) issuance of invoices and the collection of applicable VAT from France where the goods are shipped customers and the declaration and quarterly payment of VAT thus collected through the special VAT return D398 (VAT Return One Stop Shop).
It is important to note that registration in the OSS system (EU special regime) is not mandatory, but is a simplification measure (facility) granted to suppliers who carry out intra-Community sales of goods at a distance. This means that they can pay VAT due in other EU Member States, without having to register for VAT purposes in other countries, but only through a special registration in their own Member State in which they are established.
The disadvantage of not registering in the OSS system is that the seller will have to register for VAT purposes in each EU Member State where the place of delivery of goods is considered according to Article 275 paragraph (2) of the Tax Code, ie where the goods are shipped / transported to individual customers. physical.
Therefore, after reaching the limit of 46,337 lei (10,000 euros), the Romanian company will have to opt either for registration for VAT purposes in France, or for registration in a special EU regime (OSS regime).
The taxable person applies the non-EU regime or the EU regime starting with the first day of the calendar quarter following the transmission of the declaration of commencement of activity, correctly completed.
Exceptionally, if the first supply of services or the first supply of goods, which could be subject to the application of the non-EU regime or the EU regime, is carried out before the first day of the calendar quarter following the transmission of the declaration of commencement of activity, the special regime shall apply from the date of the first supply / delivery, provided that the taxable person notifies the tax authority of the commencement of its activities which may be subject to the special regime, until the 10th of the month following the first supply or delivery.
The notification is made by submitting, in electronic format, the declaration of commencement of the activity.
There is also the possibility for the company to apply the VAT regime for intra-community distance sales of goods (with registration in France or in the special OSS regime) and before reaching the limit of 46,337 lei (10,000 euros) based on the provisions of article 278 ^ 1 paragraph (3 ) of the Fiscal Code according to which the sellers have the right to choose the place of delivery or service to be established in accordance with the provisions of Article 275 paragraph (2) of the Fiscal Code, stating that the option is mandatory for at least 2 calendar years.
In conclusion, given that the company estimates that it will achieve intra-community sales of goods over the ceiling of 46,337 lei (10,000 euros) it is advisable to opt for registration in the special EU regime according to Article 315 of the Fiscal Code (OSS system), which will be used even if the sales will be extended to individual customers from other EU member states than France.
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;
– The Methodological Norms for the application of the Fiscal Code (approved by GOVERNMENT DECISION no. 1/2016).
– Order ANAF 1387/2021 for the approval of the Registration Procedure for the use of one of the special regimes for taxable persons providing services to non-taxable persons or selling goods at a distance, as well as for declaring value added tax, according to the provisions of article 314, article 315 and article 315^2 of the Fiscal Code, in the situation where Romania is a member state of registration, as well as for the modification of some procedural provisions.