According to article 19 paragraph 31 of the Accounting Law no.82/1991, republished, as amended and supplemented, the quarterly distribution of profits to shareholders or associates may be made optionally, during the financial year, within the limit of the quarterly net accounting profit, plus any retained profits and amounts withdrawn from reserves available for this purpose, less any losses carried forward and amounts deposited in reserves in accordance with legal or statutory requirements, respectively on the basis of the interim financial statements approved by the general meeting of shareholders or associates, as the case may be.
Note that the distribution is not conditional on the actual payment of dividends.
We remind you that, according to Order 3067/2018, entities that have opted, according to the law, for quarterly distribution of dividends, prepare interim financial statements consisting of balance sheet and profit and loss account.
These components have the same structure as that applicable to the annual financial statements prepared in accordance with these regulations. Income and expenses so reported shall be determined cumulatively from the beginning of the financial year to the end of the quarter for which the entity has elected to distribute dividends.
In order to draw up the interim financial statements, an inventory of assets, liabilities, and equity items shall be carried out, in accordance with the provisions of the Order of the Minister of Public Finance no.2861/2009 for the approval of the Rules on the organisation and carrying out of the inventory of assets, liabilities and equity items, and the valuation of these items, in accordance with the applicable accounting regulations.
The results of the inventory and valuation carried out on this occasion are recorded in the entity’s accounts in accordance with the applicable accounting regulations.
Interim financial statements shall be drawn up on the basis of the trial balance, which shall include the results of the inventory.
According to Order 3067/2018, Article V, the interim financial statements shall be submitted to the territorial units of the Ministry of Public Finance within 30 days of their approval by the general meeting of shareholders/associates.
The regularization of the amounts distributed during the financial year according to Article 19 paragraph (3^1) shall take place after the approval of the annual financial statements, and the dividends distributed and overpaid during the financial year shall be returned within 60 days from the date of approval of the annual financial statements.
- According to Law 227/2015 on the Tax Code, until 31 December 2022 the tax rate is 5%:
97. (7) Dividend income, including income obtained as a result of holding units in collective investment undertakings as defined by the relevant legislation, shall be taxed at a rate of 5% of the amount thereof, the tax being final. The obligation to calculate and withhold tax on income in the form of dividends is incumbent on legal entities, together with the payment of dividends/amounts representing income obtained as a result of the holding of shares by shareholders/associates/investors. The deadline for remittance of the tax is up to and including the 25th of the month following the month in which the payment is made.
In the case of dividends/gains obtained as a result of holding equity securities, distributed but not paid to shareholders/associates/investors by the end of the year in which their distribution was approved, the dividend/gain tax shall be paid on or before 25 January of the year following the distribution. The tax due shall be paid in full to the state budget.
The tax is declared on form D100 by the 25th of the month following the month in which the dividends were paid. For dividends distributed in 2022 but not paid by 31.12.2022, the tax must be declared and paid by 25 January 2023.
The tax is also declared on form 205 with a filing deadline in the year following the year in which the dividends are paid.
- Starting from 1 January 2023, the rules approved by Article I point 44 and Article IX letter a) of Ordinance no. 16/2022 for amending and supplementing Law no. 227/2015 on the Tax Code, repealing certain normative acts and other financial-fiscal measures are applicable:
Thus, according to point 44, in Article 97 paragraph (7), the first sentence is amended and will read as follows:
“(7) Income in the form of dividends, including the gain obtained as a result of the holding of shares defined by the relevant legislation in collective investment undertakings shall be taxed at a rate of 8% of the amount thereof, the tax being final. (…)”
Article IX. 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 I shall enter into force on 1 January 2023, with the following exceptions:
- a) the provisions of point 3 regarding the amendment of Article 43 paragraph (2) and (5), point 44, 89 and 92 shall apply to dividend income distributed after 1 January 2023;
In conclusion, for dividends distributed during 2022, a 5% tax rate applies, regardless of when the actual payment takes place. The taxation of this income is final and, at the date of this reply, the legislation does not provide for the obligation to make an adjustment in 2023, in the sense of increasing the percentage to 8%.
- Deadlines for dividend payment:
According to article 67 of Law 31/1990 on companies, the following deadlines for the payment of dividends apply:
Dividends shall be distributed to the shareholders in proportion to their share of the paid-up share capital, optionally quarterly on the basis of the interim financial statements and annually, after adjustment through the annual financial statements, unless otherwise provided for in the articles of association.
They may be paid optionally 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. Otherwise, the company shall owe, after this term, the penalty interest calculated according to article 3 of the Government Ordinance no. 13/2011 on the legal interest and penalty interest for money obligations, as well as for the regulation of some financial-fiscal measures in the banking sector, approved by the Law no. 43/2012, with subsequent completions, if a higher interest rate has not been established by the articles of association or by the resolution of the general meeting of shareholders that approved the financial statements for the past financial year.
In the case of partial distribution of dividends among associates or shareholders during the financial year, the annual financial statements shall show the dividends partially allocated and shall adjust the resulting differences accordingly.
If the associates or shareholders owe dividend refunds, following the adjustment made in the annual financial statements, they shall be paid to the company within 60 days from the date of approval of the annual financial statements. Otherwise, the associates or shareholders shall owe, after this term, the penalty interest calculated according to Article 3 of the Government Ordinance no. 13/2011, approved by the Law no. 43/2012, as amended, if the articles of association or the resolution of the general meeting of shareholders that approved the financial statements for the past financial year did not set a higher interest rate.
It is important to note that dividends may only be distributed from profits determined in accordance with the law.
Dividends paid contrary to the above provisions shall be refunded if the company proves that the shareholders knew of the irregularity of the distribution or, in the existing circumstances, should have known of it.
The right of action for the return of dividends paid contrary to the provisions of Law 31/1990 is prescribed within 3 years from the date of their distribution.
Dividends due after the date of transfer of shares belong to the transferee, unless the parties have agreed otherwise.
Legal basis:
– Law 82/1991 on accounting – Republication, with subsequent amendments and additions;
– Law 31/1990 ^1) on companies – Republication, with subsequent amendments and additions;
– Fiscal Code (approved by Law no. 227/2015, published in MO no. 688 of 10.09.2015), with subsequent amendments and additions;
– Methodological norms for the application of the Fiscal Code (approved by HG no. 1/2016).