According to the Tax Code, article 269, paragraph (1), a taxable person is a person who carries out, in an independent manner and regardless of location, economic activities of the nature referred to in paragraph (2), whatever the purpose or result of such activity.
According to paragraph 2, for the purposes of this Title, economic activities include the activities of manufacturers, traders or providers of services, including mining, agriculture and activities of the liberal professions or activities treated as such. The exploitation of tangible or intangible property for the purpose of obtaining income on a continuing basis also constitutes an economic activity.
According to point 4 paragraph (3) and paragraph (4) of the Methodological Norms, the natural person, who has not already become a taxable person for other activities, is considered to carry out an economic activity from the exploitation of tangible or intangible goods, if he acts as such, in an independent manner, and the activity is carried out for the purpose of obtaining income of a continuing nature, within the meaning of Article 269 paragraph (2) of the Tax Code.
In the case of the construction of immovable property by an individual with a view to sale, the economic activity is deemed to have commenced when the individual intends to carry out such activity, and the individual’s intention must be assessed on the basis of objective elements, e.g. the fact that the individual begins to incur costs and/or make investments in preparation for the commencement of the economic activity. The economic activity is considered to be continuous from the moment of its commencement, including the delivery of the constructed immovable property or parts thereof, even if it is a single immovable property.
Therefore, a natural person is a taxable person if he is deemed to be carrying out economic activities, including construction activity, and this activity is deemed to have started as soon as the costs of carrying out the construction work are incurred.
If the natural person in question is not registered for VAT purposes, if after the first supply he reaches or exceeds the exemption threshold provided for in Article 310 paragraph (1) of the Tax Code (300,000 lei), the person is obliged to apply for registration for VAT purposes within 10 days from the date of reaching or exceeding the threshold, respectively from the 1st of the month following the month in which the threshold was reached or exceeded, according to Article 310 paragraph (6) of the Tax Code.
Thus, after registration for VAT purposes, for a subsequent supply, the natural person will issue a VAT invoice, if the construction will be supplied to a person not registered for VAT purposes according to Article 16 or will apply the simplification measures in the case where the supply is made to a person registered for VAT purposes according to Article 316.
Basically, the natural person will be liable for VAT on all supplies and will have the right to deduct for purchases intended for use in taxable transactions (Article 297), provided that the natural person holds invoices issued in his name.
A person who has the intention, confirmed by objective evidence, to start independently an economic activity within the meaning of Article 269 of the Tax Code and who starts to incur costs and/or to make preparatory investments necessary to start this economic activity, must be considered as a taxable person acting in this capacity, who has, in accordance with Article 297 of the Tax Code, the immediate right to deduct the tax due or paid for the expenses and/or investments incurred for the purpose of the operations he intends to carry out and which give rise to a right of deduction, without having to wait for the actual commencement of his activity. In this sense, the European Court of Justice has ruled in Case C-110/98 Gabalfrisa.
The tax is deductible to the beneficiary when the tax becomes due for the delivery/service performed by the supplier/provider, according to the provisions of article 297 paragraph (1) of the Tax Code, with the exceptions provided for in article 297 paragraph (2) and (3) of the Tax Code.
VAT registration – procedure:
According to the Procedure for registration for value added tax purposes, approved by ANAF Order 239/202, with subsequent amendments and additions, the taxable person applying for registration for value added tax purposes, according to Article 316 paragraph (1) letter a) of the Tax Code, shall submit to the competent tax authority , as appropriate:
- application for VAT registration (form 098), in the case of taxable persons who are subject to registration with the trade register. In this case, the application for registration for VAT purposes is submitted to the competent tax office on the same day as the application for registration in the commercial register is submitted to the commercial registry office;
- the tax registration declaration (010), in the case of taxable persons who are not subject to registration in the commercial register. In this case, the tax registration declaration is submitted at the time of the first tax registration, usually at the time of establishment, and the application for VAT registration is made by filling in the “Tax vector data” section of the declaration.
The taxable person who applies for registration for value added tax purposes, according to the provisions of Article 316 paragraph (1) letter b) – exceeding the limit – or c) – by option – of the Tax Code, submits to the competent tax authority the declaration of mentions (010), having filled in the heading “Data on the tax vector”, section “Value added tax”.
After receiving the decision confirming registration for VAT purposes, the natural person will have to keep a sales log and a purchase log and submit a quarterly VAT return 300 and information return 394.
We remind you that, starting March 1, 2022, the communication of authorized individuals (PFA) with the National Tax Administration Agency (ANAF) will be done exclusively online, by registering in the Virtual Private Space (SPV).
Please note that access to the VPS can be made without a qualified certificate (electronic signature), as well as the filing of the Single Declaration, but the filing of the D112, D300, D394, etc. declarations can only be made by electronic signature.
Legal basis:
-ANAF Order 239/2021 approving the procedure for registration for value added tax purposes, according to the provisions of Article 316 paragraph (1) letter a), b) or c) of Law no. 227/2015 on the Tax Code.
-Tax Code of 2015 (Law 227/2015), as amended and supplemented;
-Tax Procedure Code (approved by Law no.207/2015, published in the Official Gazette no.547 of 23.07.2015), as amended and supplemented