The Ministry of Finance (MF) has published a draft Ordinance amending and supplementing Law no. 207/2015 on the Tax Procedure Code, a document which, according to the explanatory note of the normative act, took into account the proposals and observations resulting from the work of ANAF, the Romanian Customs Authority, as well as the issues that were referred to the Ministry of Finance by taxpayers or professional institutions.
The new draft proposes the following:
♦ amendment of Article 47 paragraph (15) of the Tax Procedure Code in the sense that the tax administrative act issued in electronic form shall be communicated to taxpayers/payers enrolled in the systems developed by the Ministry of Finance (MF) /ANAF or by local tax authorities through electronic means of remote transmission established according to paragraph (16) or (17) of the same article. The document issued in this form shall be deemed to have been communicated on the date on which it is made available to the taxpayer/payer by such electronic means. “This proposal takes into account the fact that taxpayers have already enrolled in electronic communication systems, so that the same communication channel must be used for both documents received and those communicated by the tax authorities,” MF representatives say;
♦ amendment of Article 52 paragraph (1), (3) (16) and (19) and the introduction of a new paragraph (191), with the aim of increasing the quality of the public service provided in connection with the issuance of the anticipated individual tax solution by increasing the efficiency of the activity, reducing the processing times, better management of files, specialization of inspectors by categories of tax liabilities and increasing the quality of the administrative act issued. In paragraph 1, the subject matter of the request for issuing an advance individual tax ruling is limited to a future factual tax situation and a principal tax liability. There is no limit to the number of requests that the taxpayer/payer may submit. The Explanatory Memorandum notes that in practice, cases have been observed where taxpayers request in a single request the tax treatment in relation to several future factual tax situations and several main tax liabilities, making it difficult both to manage and to analyse the substance of the requests. “This proposed amendment is all the more relevant in the context of requests that are not elaborated in a comprehensive and detailed manner or that, based on the criteria set out in the resolution procedure, are to be rejected for a particular subject matter concerned,” MF states.
Paragraph (3) will be amended to align with the practical aspects of the preliminary discussion in that the preliminary discussion cannot result in the determination of the future factual situation for the issuance of a tax ruling given the complexity of the cases subject to the requests.
“Practical experience has shown that a preliminary discussion is unlikely to result in a properly reasoned conclusion in relation to an application for an advance individual tax ruling, given the limited information available from the taxpayer and the limited time available. Thus, in essence, the preliminary discussion has an exploratory role and understanding of some general issues related to the preparation by the taxpayer/payer of an application for the issuance of an advance individual tax solution that meets the requirements imposed by the settlement procedure”, the initiators of the draft stress.
In paragraph 16, it is proposed to include the category of non-resident taxpayers in point a) for which the issuing fee is EUR 5 000. MF notes that these taxpayers have not benefited so far from the anticipated individual tax solution instrument and clarification was needed on the applicable issue fee category.
In paragraph 19, it is proposed to delete the provision on the refund of the tax in case the application for an advance individual tax ruling is rejected and to regulate this in a new paragraph, paragraph 191. After paragraph 19, a new paragraph 191 is inserted, proposing the refund of the fee for the issuance of the advance individual tax solution in case the taxpayer/payer applies on his/her own initiative, at any time within the first 15 days after the submission of the application, the period allocated to the preliminary examination. The fee shall also be refunded if the application has not been considered by the competent tax authority upon completion of the preliminary analysis and the taxpayer/payer notified of this fact opts to waive the application and requests the refund of the fee. MF states that this proposal has two objectives. The first is to recognise the work done by the staff involved in the processing of applications for the issuance of tax rulings even in the case of rejection of applications. The second objective concerns the empowerment of applicants, motivated by previous experience in which numerous cases of non-compliant, incomplete or unjustified applications have been identified for which resources are allocated for analysis and resolution, resulting in overall negative consequences on the resolution deadlines and the quality of the administrative acts produced;
♦ amendment of Article 59(4), Article 65(7), Article 150(5)(a), Article 151(1) and (2), and Article 350(2) of the Fiscal Procedure Code in order to correlate with the provisions of Article 2 of Government Decision No 237/2022. Thus, with regard to the field of excise goods or the customs field, the procedural rules concerning the periodic provision of information, the competence to carry out on-the-spot inspections, the regime of acts of referral to the criminal prosecution authorities and the delimitation of the competences of the control structures are approved by order of the President of the Romanian Customs Authority. At the same time, Article 350 paragraph (2) regulates that the criminal prosecution authority may request the Romanian Customs Authority to carry out controls in the field of excise duties or customs operations;
♦ modification of Article 701 paragraph (1) letter a) in order to correlate with the provisions of Article 11 paragraph (3) letter a1 ), regarding the access of public interest institutions to ANAF information, in order to replace the phrase “public authorities, public institutions and public interest institutions of the central and local public administration” with the phrase “public authorities, public institutions and public interest institutions defined according to Article 11 paragraph (3) letter a)”. Thus, it follows that ANAF may transmit the information it holds to public interest institutions defined according to their organisational and operating regulations, which are entrusted with performing a public interest service, in order to fulfil the obligations laid down by law;
♦ amendment of Article 83 (2), (4) and (5), in order to exempt from the assignment of the tax identification number, non-resident persons who are registered for tax purposes and who communicate to the National Trade Registry Office (ONRC) information on tax registration on the same day or at the latest on the following day. It is also proposed that once the tax registration certificate has been issued, it should be kept by the tax office until the date of collection by the taxpayer or his representative. MF also mentions that, according to paragraph (5) of Article 83 of the Tax Procedure Code, for non-resident taxpayers who do not have a permanent establishment on the territory of Romania, the tax authority may communicate to the non-resident taxpayer, by electronic means established by order of the President of ANAF, information contained in the tax registration certificate. At the same time, it is proposed to repeal paragraph (3) of Article 83 of the Tax Procedure Code, as the tax registration certificate is no longer communicated to the ONRC;
♦ amendment of Article 94 paragraph (3) of the Tax Procedure Code, in the sense that the reservation of subsequent verification is cancelled only upon expiry of the limitation period of the right to establish tax claims or following the tax inspection or verification of the personal tax situation if they are completed with inspection report/verification report and decision issued according to this normative act;
♦ supplementing Article 111 of the Tax Procedure Code with the introduction of a new condition for suspending the limitation period in the event of the death of a natural person in respect of whom a tax inspection action is pending. Thus, it is proposed that the limitation period of the right to establish tax claims be suspended for the period between the date of death of the natural person on whom a tax inspection action was in progress and the date of becoming aware by the inspection/audit authority that there are successors or not, as the case may be, but not more than 2 years from the date of death of the author of the succession. MF specifies that this amendment is justified by the provisions of Article 126 paragraph (21) of the Tax Procedure Code, where it is provided that if the tax inspection has started and the death of the natural person as a tax subject occurs, the tax inspection continues with the successors of that person, if they exist, in which case the tax claim is established in the name of the successors;
♦ in the context of the strategy of digitization of ANAF, it is proposed to supplement paragraph (2) of Article 124 of the Tax Procedure Code with the explicit mention that in the taxpayer’s relationship with the tax inspection authorities, electronic means of remote communication may also be used. – It is proposed to amend paragraph (1)(a) of Article 126 of the Tax Procedure Code to change the duration of the tax inspection for non-resident taxpayers, i.e. the maximum duration of the tax inspection to 180 days, similar to the duration for large taxpayers or taxpayers with secondary offices. This amendment aims at eliminating problems arising from the work of the tax inspection authority;
♦ supplementing Article 132 of the Tax Procedure Code with provisions regulating the conduct of the tax inspection authority in the situation where the competent judicial authorities have been notified of findings made during the tax inspection that may constitute elements of a criminal offence, under the conditions provided for by the criminal law, i.e. they shall, upon notification to the criminal prosecution authorities, terminate the tax inspection for the periods and tax liabilities that are the subject of the criminal referral. Subsequently, if, after referral to the criminal prosecution, the prosecutor, by order, orders that the criminal prosecution be dropped or discontinued, or if, after referral to the court, the civil action is left unresolved, the tax inspection authority may resume the inspection, in which case a new tax inspection notice shall be issued;
♦ in order to strengthen the active role of the tax inspection authority, in accordance with the principle of good faith, it is proposed that Article 137^1 of the Tax Procedure Code be supplemented by regulating the obligation of the tax inspection authority to analyse the point of view expressed by the taxpayer/payer and, where appropriate, to reconfigure the findings if the taxpayer/payer’s arguments are decisive;
♦ the introduction of a new article, Article 162^1 on the publication of lists of taxpayers who are not in arrears, in order to make public taxpayers who have declared and paid their tax liabilities on time and who are not listed in the tax records as being in arrears. In this way, taxpayers who are not in arrears can be considered reliable partners in contractual relations with the business community.;
♦ amending/completing art 165 paragraph (6), article 167 paragraph (11) and (12) and article 179 of the Fiscal Procedure Code to give greater clarity to the text of the law, replacing the phrase “fiscal obligations arising after/prior to the opening of the procedure insolvency” with the phrase “fiscal obligations admitted to the credal table/ fiscal obligations, other than those registered in the credal table”, considering the fact that the notion of “credal table” is frequently used in Law no. 85/2014 on insolvency prevention and insolvency procedures, with subsequent amendments and additions;
♦ amendment of Article 184 paragraph 6(e) and Article 209^1 paragraph 6(f) of the Fiscal Procedure Code to exclude customs duties, excise duties and value added tax from the payment instalments;
♦ supplementing Article 194(1) and Article 209^4(1) of the Code of Fiscal Procedure in order to clarify that in relation to the regulated deadlines for maintaining the payment instalments priority is given to those established in the specific State aid legislation; thus the amounts established by a State aid recovery decision issued by the European Commission or by the national public authorities as State aid provider must be paid within the deadlines established in the specific legislation;
♦ in view of the aspects resulting from practice, in that there is a vulnerability which gives the possibility to some permit holders operating in specifically regulated areas, i.e. who have to pay tax liabilities administered by the central tax authority within a certain period of time in order to maintain their permit, agreement or other similar administrative act, to evade payment of tax liabilities, in that the granting of a payment instalment has subsequently led, through successive amendments to the instalment, both to non-payment of tax liabilities and to the accumulation of new liabilities, it is proposed: ▪ supplementing Article 204 of the Tax Procedure Code to the effect that the payment instalment should be accessed by debtors who have to pay the tax liabilities administered by the central tax authority within a certain period of time in order to maintain the authorisation, agreement or other similar administrative act only with the provision of securities under Article 193(6)(a) and/or (b), as the case may be, of the same act, taking into account the risk posed by these categories of taxpayers/payers; ▪ supplementing Article 209^1 paragraph (6) and amending paragraph (11) of the same Article of the Tax Procedure Code in order to exclude from the simplified payment instalment procedure debtors who have to pay tax liabilities administered by the central tax authority within a certain period of time in order to maintain the authorisation, agreement or other similar administrative act;
♦ supplementing Article 248 of the Code of Tax Procedure, in order to regulate also those situations in which the debtor recovers assets at a lower value than that established by the valuation report, but which ensures full recovery of the tax debt, including the accessory charges and enforcement costs. In these cases the purpose of enforcement is achieved and the debt is recovered in full, so that any disagreement by the enforcement authority would be irrelevant. As the sale is made by the debtor himself, the debtor’s interests are also respected;
♦ the introduction of a new paragraph supplementing the provisions of Article 265(11) of the Code of Tax Procedure with a new subparagraph to regulate the possibility of declaring the insolvency of debtors who own assets whose value is less than 2% of the amount of outstanding tax liabilities;
♦ supplementing Article 267 of the Code of Tax Procedure, in order to clarify that in the field of State aid, European Union law takes precedence, and by exception to the provisions of Article 230 of the same act, enforcement measures are immediately applied to these claims, without the notification of the summons;
♦ amendment of Article 273 paragraph (2) of the Tax Procedure Code, in order to delete the phrase “final in the system of administrative appeals” as the decision issued in the settlement of the appeal may be reviewed under Article 281^1 of the same act;
♦ amendment of Article 276(4) of the Code of Tax Procedure for the situation where new evidence has been submitted in support of the case in the appeal procedure, in order to delete the phrase “or the authority that carried out the control activity”, considering that the tax authority that carries out the control activity is also the issuer of the contested tax administrative act. In addition, it is proposed that paragraph 5 of Article 276 of the Code of Tax Procedure should be supplemented so that the intervener or the taxpayer’s/intervener’s representatives may also request the competent authority to hear the appeal orally;
♦ supplementing Article 279 of the Code of Tax Procedure in order to clarify the rejection decision, which may be total or partial, and the consequences of this decision, in the sense that, when rejecting the appeal, it is decided, as the case may be, to confirm total or partial confirmation of the contested act
♦ Clarification of paragraph 6 of Article 281 of the Code of Tax Procedure to the effect that the dispute resolution procedure ceases on the date on which the specialised dispute resolution structure is informed of the taxpayer’s/payer’s administrative dispute action, as the decision to withdraw is issued by the dispute resolution authority. Requests for termination of the appeal procedure are forwarded by taxpayers/legal departments of the ANAF to the tax authorities issuing the administrative acts under appeal. In view of the content of the Decision of the Constitutional Court of Romania No 72/2019, it is necessary to amend Article 350 of the Tax Procedure Code in order to repeal the provisions of paragraph (1) of this Article. It is also proposed to reword paragraph (3) in order to delete the references to paragraph (1) proposed for repeal;
♦ transitional rules in Article II for debtors who have to pay the tax liability administered by the central tax authority within a certain period of time in order to maintain the authorisation, agreement or other similar administrative act, respectively: ▪ for debtors who have applied for a payment instalment without securities or with insufficient securities and are in the process of settlement on the date of entry into force of this Ordinance, they are to be settled according to the new regulations, in the sense that such debtors may benefit from the payment instalment only if they provide securities at the level provided for in Article 193 paragraph (13) or (14) of the Tax Procedure Code; ▪ for debtors who on the date of entry into force of this Ordinance have payment instalments either in the form governed by Chapter IV- Payment Relief of Law no. 207/2015 on the Tax Procedure Code, with subsequent amendments and additions, or payment instalments, in simplified form according to Chapter IV1 of the same act, and apply for modification or maintenance of the payment instalment, they must provide guarantees, according to Article 193 paragraph (6) letter a) and/or b), of the Tax Procedure Code, as appropriate, within 30 days from the date of communication of the agreement in principle by the central tax authority. It is also provided that the document determining the amount of security to be provided by the debtors concerned is the agreement in principle communicated by the central tax office.
Source: CECCAR