Situation: A pregnant employee will have, during the first quarter of 2023, her employment contract suspended for a period of 2 years, as she will go on parental leave. We mention that this employee is the only employee of ABC SRL.
Under these conditions, will ABC SRL be able to keep its micro-enterprise status from 1 January 2023?
Solution:
According to the Tax Code, article 51, paragraph (4), employee means a person employed under a full-time individual employment contract, according to Law no.53/2003 – Labour Code, republished, with subsequent amendments and additions. The condition is also considered fulfilled in the case of micro-enterprises that:
- have persons employed under individual part-time employment contracts if the total of the fractions of time stipulated therein represent the equivalent of a full time contract;
- have management or mandate contracts, according to the law, if their remuneration is at least at the level of the minimum gross basic wage per country guaranteed in payment.
According to OG 16/2022 (which amends the Tax Code as of 1 January 2022), when the employment relationship is suspended, according to the law, the condition of holding an employee is considered fulfilled if the period of suspension is less than 30 days and the situation is registered for the first time in that tax year. Otherwise, the provisions of Article 52(2) are applicable accordingly.
Please note that Article 52, paragraph (2) provides that if, during a tax year, a micro-enterprise no longer meets the condition laid down in Article 47 paragraph (1) letter g) – it has at least one employee, with the exception of newly established PJs – it shall pay profit tax starting from the quarter in which this condition is no longer met.
Thus, taking into account the above provisions, in order to remain a microenterprise, starting from 2023, the company will have to meet the condition of having an employee with an active, full-time employment contract, suspended employment contracts having the restrictions mentioned above.
Therefore, starting from the 1st quarter of 2023, the company, if it does not hire a new employee with an active contract by 31 March 2023, will have to switch to the income tax system.
Legal basis:
-Ordinance 16/2022 amending and supplementing Law no. 227/2015 on the Fiscal Code, repealing certain normative acts and other financial-fiscal measures;
-Fiscal Code (approved by Law no.227/2015, published in the Official Gazette no.688 of 10.09.2015), with subsequent amendments and additions.