ANAF Order no.765 on the procedure for refunding the tax on dividends resulting from the annual adjustment of dividends partially distributed during the year was published in the Official Gazette (Part I) no.402 of 27 April 2022.
We point out that the initiators of the normative act mention, in the Approval Report, that, according to article 67 of the Companies Law no.31/1990, republished, with subsequent amendments and additions, the dividends are distributed to the associates in proportion to the share of participation in the paid up share capital, optionally quarterly on the basis of the interim financial statements and annually, after the regularization made through the annual financial statements, if the constitutive act does not provide otherwise. They may optionally be paid on a quarterly basis within the time limit set by the general meeting of shareholders or, as the case may be, by special laws, the adjustment of the differences resulting from the distribution of dividends during the year being made through the annual financial statements. Payment of the differences resulting from the regularization shall be made within 60 days from the date of approval of the annual financial statements for the past financial year.
The main provisions of ANAF Order 765/2022 are:
- approval of the procedure for refunding the dividend tax resulting from the annual adjustment of dividends partially distributed during the year.
- approval of the model of the regularization declaration/refund request for dividend tax.
Procedure for refunding the dividend tax resulting from the annual adjustment of dividends partially distributed during the year:
The object of the procedure is the tax on dividends overpaid to the state budget, resulting from the annual adjustment of dividends partially distributed during the year, according to article 67 of the Companies Law no.31/1990, republished, with subsequent amendments and additions, after the repayment by the associates or shareholders of the dividends received in excess by them or after the approval of the annual financial statements in the case of interim dividends distributed and not paid, until the end of the year in which their distribution was approved.
If the annual adjustment of dividends paid as a result of their partial distribution during the year results in amounts to be refunded from the budget, the dividend payer may request their refund.
According to the recently published normative act, if the dividend payer finds that the amounts distributed were higher than the dividends due, he shall correct the dividend tax debts declared to the central tax authority competent in the administration of his tax obligations, by filing a corrective declaration in which the amount of dividend tax resulting from the annual regularization of the dividends is highlighted as overpaid, after the return of the dividends by the associates/shareholders.
Subsequent to the submission of the corrective declaration, the dividend payer submits to the competent tax authority a declaration of regularization/claim for refund of dividend tax.
The declaration of regularization/claim for refund of dividend tax (Annex no.2) shall be submitted to the competent tax authority in accordance with the provisions of Law no. 207/2015 on the Code of Tax Procedure, only after the refund by the partners or shareholders of the over-distributed dividends.
Please note that the request for refund can be submitted until the expiry of the limitation period of the right to claim refund provided for in Article 219 of the Code of Tax Procedure, i.e. 5 years from 1 January of the year following the year in which the right to refund arose.
If the dividend payer has outstanding tax liabilities, including fines of any kind and other budgetary claims, which are forwarded to the competent tax authority for recovery, the amount resulting from the annual dividend adjustment, hereinafter referred to as the amount to be refunded, shall be refunded only after offsetting in accordance with Articles 167 and 168 of the Tax Procedure Code.
If the amount to be refunded to the dividend payer is less than his outstanding tax liabilities, including fines of any kind and other budgetary claims, forwarded for recovery to the competent tax authority, the offsetting shall be carried out up to the amount of this amount.
Where the amount to be repaid to the dividend payer is greater than the amount of the dividend payer’s outstanding tax liabilities, including fines of any kind and other budgetary claims, which have been submitted to the competent tax authority for recovery, the set-off shall be made up to the amount of such liabilities, and the resulting difference shall be repaid to the dividend payer.
In order to carry out the compensation/refund, the provisions of the OMFP Order no.1899/2004 for the approval of the Procedure for the refund and reimbursement of amounts from the budget, as well as for the granting of interest due to taxpayers for amounts refunded or reimbursed after the legal deadline shall apply accordingly.
The refund of the dividend tax due to the payer shall be made by bank settlement, within the term provided for in Article 77 of the Tax Procedure Code (within 45 days from the registration of the request), to the bank account indicated by the dividend payer in the refund request.
The dividend payer may also request a refund of the dividend tax if, after approval of the annual financial statements in the case of interim dividends distributed and not paid to shareholders or associations, there is an overpayment to the budget.
Extract from OpANAF 765/2022:
(1)_
REGULARISATION DECLARATION/ REFUND APPLICATION OF DIVIDEND TAX | _ _ _ | |
Reporting period Month |_|_| Year |_|_|_|_| | ||
Pursuant to Article 1701 of Law No. 207/2015 on the Code of Tax Procedure, I request the refund of the amount referred to in letter B point 3.
- Payer identification data
Tax identification code |__| |_|_|_|_|_|_|_|_|_|_|_|_|_| Name |_________________________________________________________________| County |_______| City |_________| Street |_________| No. |____| Block |__| Unit |__| Ap. |__| Postal code |_______| Sector |_| Phone |_______| Fax |_______| E-mail |_________| |
- Tax debt data
| Crt. no. | Name of debt data | Amount | (lei) |
| Budget code: | 1. Tax on dividends declared during the year for which the adjustment is made | ||
| 2. Dividend tax resulting from the annual regularisation of dividends | |||
| 3. Diferenta solicited the return (lines 1 à 2) |
- Return of dividends by shareholders/associates
| Crt. no. | Name and surname of shareholders/partners | Amount (lei) |
I request that the actual reimbursement of the amounts due be made to the bank account code IBAN ………………….. opened in lei, at ……………………………….
Under the penalties of false declaration, I declare that the data in this declaration are correct and complete.
| Name, Surname: | Signature | ||
| Function/Quality: |
Document containing personal data protected by the provisions of Regulation (EU) 2016/679
Legal basis:
– ANAF Order no. 765/2022 on the Procedure for refunding the dividend tax resulting from the annual regularization of dividends partially distributed during the year;
– MFP Order 1899/2004 for the approval of the Procedure for restitution and reimbursement of the amounts from the budget, as well as for granting the interests due to the taxpayers for the amounts reimbursed or reimbursed with exceeding the legal term;
– 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.