In the Official Gazette (Part I) no.1255 of 27 December 2022 was published Law no.376/2022 for the amendment and completion of OUG no.28/1999 on the obligation of economic operators to use electronic fiscal cash registers.
The provisions of this law enter into force on 1 January 2023.
According to the new provisions, tip means any amount of money offered voluntarily by the customer, in addition to the value of the goods delivered or services rendered by economic operators carrying out activities corresponding to CAEN codes: 5610 – “Restaurants”, 5630 – “Bars and other beverage serving activities”.
The tip cannot be treated as a supply of goods or services for VAT purposes.
Main changes/completions to OUG 28/1999:
For economic operators carrying out activities corresponding to CAEN codes: 5610 – “Restaurants”, 5630 – “Bars and other beverage serving activities, the tip collected from customers is shown on the tax receipt, regardless of the method of collection.
By exception, for the delivery of products to the customers’ homes, the economic operators mentioned above are not obliged to record the tip on the tax receipt.
In the event that for the delivery of products to the customer’s home the option is chosen to record the tip on the tax receipt, the provisions of this law are fully applicable accordingly, with the possibility of adapting the specific form of the field.
Obligations of economic operators (CAEN 5610 and 5630):
- the obligation to provide the customer with a payment slip, prior to the issue of the receipt, in which the customer can choose the level of the tip offered, between 0% and 15% of the consumption value. The payment slip must also contain another box in which the customer can enter the amount offered as a tip, in absolute value, if the customer opts for this method of determining the amount of the tip.
- it is forbidden for economic operators to make the delivery of goods or the provision of services in any form whatsoever conditional on the granting of a tip.
- The tip is shown separately on the same tax receipt as the goods delivered/services provided and is entered in the database of the electronic tax tallying machines as an item with the name “tip”.
- if, at the request of customers, users also issue them with an invoice, the tip is also shown separately on the invoice. The amounts representing the tip, thus highlighted on the invoice, are recorded in the accounts of economic operators or other paying entities on account of protocol expenses and have their fiscal regime, within the limit of deductibility established by the Fiscal Code.
It is important to underline that the amounts coming from the collection of the tip are recorded in the accounts of the economic operators under the accounts payable using a separate analytical and are distributed in full to the employees, based on a nominal statement.
Economic operators shall lay down, in an internal regulation, the procedure and method for distributing the amounts deriving from the collection of tips to employees.
From a tax point of view, the amounts derived from the collection of the tip from the customer by the economic operator cannot be assimilated to an item of income for the latter, and their distribution to employees cannot be assimilated to an item of expenses.
Attention! The tip cannot be treated as a supply of goods or services for VAT purposes.
Amounts derived from the receipt of tips by employees as a result of the distribution are classified as income from other sources and are subject to the tax regime laid down in Title IV – Chapter IV. X of the Tax Code, and the provisions of Title V – Compulsory Social Contributions of the same act are not applicable. The income tax due by the employee is withheld at source at the time of the distribution of the tip by the income payers and is paid to the state budget, according to Article 115 of the Tax Code.
These amounts cannot be recharacterised for tax purposes as wage or salary-like income.
Failure by economic operators to comply with the provisions of this law is punishable by a fine from 2,000 lei to 4,000 lei
Legal basis:
- Fiscal Code (approved by Law no.227/2015, published in the Official Gazette no.688 of 10.09.2015), with subsequent amendments and additions;
- Methodological Norms for the application of the Tax Code (approved by HG no.1/2016).
- Law 376/2022 for the amendment and completion of Government Emergency Ordinance No. 28/1999 on the obligation of economic operators to use electronic fiscal cash registers;
- OUG 28/1999 on the obligation of economic operators to use electronic fiscal cash registers *) – republished.