Situation: Taking into account the provisions of Law 72/2022, what is the amount of per diem that can be granted at a salary of 3,300 lei? Do the new provisions apply as from the daily subsistence allowance for April?
According to article 76 paragraph (2) letter k) point ii) of Law no.227/2015 on the Tax Code, the taxation rules for income from salaries also apply to the following types of income, considered assimilated to salaries: (…)
“k) 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 amounts of the same nature, other than those granted to cover transport and accommodation expenses, received by employees according to the relevant legislation, during the period of activity in another locality, in the country or abroad, in the interest of the service, for the part that exceeds the non-taxable limit established as such: (…)
(ii) abroad, 2.5 times the legal level established for per diem, by Government decision, for Romanian personnel sent abroad for temporary missions, up to 3 basic salaries corresponding to the place of work occupied.”
Thus, the limit of 3 basic salaries corresponding to the job 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.
Article III of Law 72/2022 specifies that, by way of derogation from the provisions of Article 4 of Law no. 227/2015 on the Tax Code, as amended and supplemented, the provisions of Article II shall apply starting with the income for the month following the month in which this law comes into force.
The above-mentioned provisions enter into force 3 days after the publication of the law in the Official Gazette, on April 4, 2022, the law being published on March 31, 2022, and the text of the law mentions that it applies starting with the income for the month following the month in which it enters into force, i.e. starting with May 2022.
In view of the above, starting with the income for the month of May 2022 (not April 2022), the amounts that can be granted to employees as non-taxable daily allowances in terms of income tax and compulsory social security contributions are calculated according to two different limit s: the first amount is 2.5 times the limit set for budgetary staff, and the second amount is a maximum of 3 basic salaries for the days of secondment/delegation, i.e. the lower of the two limit s and the amount actually granted is the non-taxable limit .
It is important to note that per diems of up to three salaries cannot be granted directly.
Basically, 2.5 times the limit set for public institutions is granted, but not more than the equivalent of three basic salaries of the employee.
In view of the new provisions, applicable from May, the calculation formula for the maximum non-taxable limit is:
Gross salary x3x no. of days for which per diem is due / no. of working days in the month.
Given that the two limits are:
– 2.5 times the limit set for budgetary staff
– a maximum of 3 basic salaries for the days of delegation.
The non-taxable daily allowance is the lower of the two calculated limits.
For a salary of 3,300 lei, the maximum daily allowance that can be granted for 1 day of travel in May 2022 is calculated as follows: 3,300 lei x 3 x 1 day of travel / 22 working days in May 2022 = 450 lei/day.
Assume that the employee is travelling to Germany for which the daily allowance is 35 euro per day. In this situation, the daily allowance to be paid is 35 euro/day x 2.5 x 5 lei/euro = 437.50 lei.
Therefore, the two limits are:
– 2.5 times the limit set for budgetary staff, i.e. 35 euro/day x 2.5 x 5 lei/euro = 437.50 lei,
– maximum 3 basic salaries for days of delegation = 3,300 lei x 3 x 1 day of travel / 22 working days in May 2022 = 450 lei/day.
The non-taxable daily allowance is the lower of the two limits calculated, i.e. 437.50 lei/day.
-Law 72/2022 for the cancellation of certain tax obligations and for the amendment of certain regulatory acts;
-Tax Code (approved by Law no.227/2015, published in MO no.688 of 10.09.2015), as amended and supplemented;
-Tax Procedure Code (approved by Law no.207/2015, published in MO no.547 of 23.07.2015), with subsequent amendments and additions;
-Methodological Norms for the application of the Tax Code (approved by Government Decision no.1/2016).