Law no.72 on the cancellation of some tax obligations and on the amendment of some normative acts was published in the Official Gazette (Part I) no.315 of 31 March 2022, with applicability from 3 April 2022.
Thus, Law no.72 /2022 provides for the annulment of the differences in the main tax liability and/or the accessory tax liability, established by the tax authority by means of a tax decision issued and communicated to the taxpayer, as a result of the subsequent qualification by the tax authority of the amounts representing allowances or any other amounts of the same nature, received during the period of delegation, secondment or activity on the territory of another country, by employees of Romanian employers who worked on the territory of another country, related to tax periods between July 1, 2015 and the date of entry into force of this law, and not paid.
The tax authority does not re-incorporate amounts of the nature mentioned and does not issue a tax decision in relation to such re-incorporation for the tax periods mentioned.
The differences in the main and/or accessory tax liabilities, established by the tax authority by means of a tax decision issued and communicated to the taxpayer, as a result of the revaluation of the aforementioned amounts, related to the tax periods between 1 July 2015 and the date of entry into force of this law, extinguished by any means provided for in Article 22 of Law no. 207/2015 on the Tax Procedure Code, with subsequent amendments and additions, shall be refunded to the taxpayers. The refund shall be made at the taxpayers’ request.
The cancellation of such tax liabilities shall be carried out ex officio by the competent tax authority, by issuing a decision on the cancellation of tax liabilities, which shall be communicated to the taxpayer.
If, prior to the entry into force of this Law, the competent tax authority has issued, but has not communicated, the tax assessment decision establishing the above-mentioned obligations, it shall no longer communicate the tax assessment decision, and the tax obligations shall be deducted from the analytical record per payer, on the basis of a deduction slip.
The procedure for the application of this Article shall be approved by order of the President of the National Tax Administration Agency, which shall be issued within 30 days from the date of entry into force of this Law.
Amendments/completions to the Tax Code:
The new law provides that the taxation rules specific to income from wages also apply to:
- the delegation allowance, the secondment allowance, including the allowance specific to transnational secondment, the additional benefits received by employees under the mobility clause, as well as any other sums of the same nature, other than those granted to cover transport and accommodation expenses, received by employees in accordance with the relevant legislation, while working in another locality, in the country or abroad, in the interests of the service, for the part exceeding the non-taxable limit thus established:
- in the country, 2.5 times the legal level established for the allowance, by Government decision, for the staff of public authorities and institutions, within the limit of 3 basic salaries corresponding to the job occupied;
- abroad, 2.5 times the legal level established for per diem, by decision of the Government, for Romanian personnel sent abroad for temporary assignments, up to 3 basic salaries corresponding to the job occupied. The limit of 3 basic salaries corresponding to the job occupied is calculated by comparing the 3 salaries to the number of working days in the respective month, and the result is multiplied by the number of days of the period of delegation/detachment/performance of the activity in another locality, in the country or abroad;
- indemnities and any other sums of the same nature, other than those granted to cover transport and accommodation expenses received during travel to another locality, in the country or abroad, in the interest of carrying out the activity, as provided for in the legal report, by the administrators established according to the constitutive act, the management contract/mandate, by the directors who carry out their activity on the basis of the mandate contract according to the law, by the members of the board of directors of the companies managed in a dual system and of the supervisory board, according to the law, as well as by the managers, on the basis of the management contract provided for by the law, for the part exceeding the non-taxable limit thus established:
(i) in the country, 2.5 times the legal level established for the indemnity, by Government decision, for the staff of public authorities and institutions, within the limit of 3 remunerations provided in the legal report;
(ii) abroad, 2.5 times the legal level established for daily allowance, by Government decision, for Romanian personnel sent abroad for temporary missions, within the limit of 3 remunerations provided for in the legal relationship. The limit of 3 remunerations provided for in the legal report is calculated by comparing the 3 remunerations to the number of working days of the respective month, and the result is multiplied by the number of days of the period of the trip.
At the same time, Law 72/2022 also stipulates, among other things, that the category of non-taxable income, within the meaning of income tax, includes the delegation allowance, the secondment allowance, including the allowance specific to transnational secondment, the additional benefits received by employees under the mobility clause, as well as any other sums of the same nature received by employees in accordance with the legislation on the subject, during the period of activity in another locality, in the country or abroad, in the interests of the service, within the limit of the non-taxable limit established in paragraph 2(k), as well as those received to cover transport and accommodation expenses.
Other important clarifications:
The tax reassessment of the amounts granted in the form of the delegation allowance, the secondment allowance, including the specific allowance for transnational secondment, the additional benefit granted on the basis of the mobility clause, received by the employees, can be carried out by the tax authorities on the basis of article 11 paragraph (1) of Law no.227. /2015 on the Tax Code, as amended and supplemented, following controls carried out by the competent authorities of the Labour Inspectorate, which ascertain the situations of delegation, secondment, transnational secondment in which the employees may find themselves, as appropriate, according to the law.
The Labour Inspectorate, through the territorial labour inspectorates, is obliged to confirm, on the basis of the documents submitted by the employer, the nature of the income granted in the form of the delegation allowance, the secondment allowance, including the allowance specific to transnational secondment, the additional benefit granted under the mobility clause:
- a) at the request of public authorities and institutions and any other entities;
- b) ex officio, as a result of their own control actions, in which case the result of the findings shall be communicated to the competent tax authority of the National Tax Administration Agency for recovery.
The procedure for the application of the above provisions shall be established by joint order of the Minister of Labour and Social Solidarity and the Minister of Finance, which shall be issued within 60 days from the date of publication of this Law in the Official Gazette of Romania, Part I.
In Law 16/2017 on the secondment of employees in the framework of the provision of transnational services, the specific allowance for transnational secondment shall be defined as the allowance intended to ensure the social protection of employees granted in order to compensate for the inconveniences caused by the secondment, which consist in the removal of the employee from his/her usual environment, being applicable to the tax regime provided for in the Tax Code.
Legal basis:
-Tax Code (approved by Law no.227/2015, published in the Official Gazette no.688 of 10.09.2015), with subsequent amendments and additions;
-Methodological Norms for the application of the Tax Code (approved by HGDlimitno.1/2016);
-Law no.16/2017 on the secondment of employees within the framework of the provision of transnational services;
-Law no.72/2022 on the cancellation of some tax obligations and on the amendment of some normative acts.