In the Official Gazette (Part I) no.263 of 30 March 2023 was published the Order of the Minister of Finance no.1178/2023 for the approval of the Procedure for the issuance of the anticipated individual tax solution.
The normative act contains the following:
- approval of the Procedure for issuing the individual advance tax solution;
- the content of the application and documentation for the issuance of the individual advance tax solution.
It is important to note that the applications for the issuance of the advance individual tax solution in progress at the date of the entry into force of this order shall be resolved according to the new procedure.
The anticipated individual tax solution shall produce effects only for the requesting taxpayer/payer and/or the entities listed in its content, taking into account the information and circumstances presented.
The anticipated individual tax solution is not applicable to other taxpayers/payers or entities and is not enforceable against the tax authority in relation to other taxpayers/payers, even if similar circumstances exist.
Preliminary discussion (prior to filing the application for the issuance of the tax solution):
According to the recently approved normative act, prior to the submission of the request for the issuance of the tax solution, the taxpayer/payer may request the competent tax authority to organize a preliminary discussion.
The request for a preliminary discussion shall be transmitted exclusively by electronic means of distance transmission and shall contain information on the identification data of the taxpayer/payer and of the legal representative, if applicable, as well as a brief presentation of the subject of the discussion.
The request for the organisation of the preliminary discussion submitted at the same time as or after the request for the issuance of the tax solution will not be considered by the competent tax authority .
Thus, the preliminary discussion shall not be held if the taxpayer/payer submits an application for the issuance of a tax solution before the date set for the preliminary discussion.
According to the procedure, the competent tax authority shall inform the taxpayer/payer of the conditions under which the preliminary discussion is organised within 5 working days from the date of receipt of the request.
Prior to the date of the preliminary discussion, the competent tax authority may request additional information from the taxpayer/payer on the issues to be discussed.
The purpose of the preliminary examination of the application is to verify compliance with the formal conditions, as well as to confirm receipt of the fee for issuing the tax solution.
Please note that, in the situation of prior analysis, the request for the issuance of the tax solution is not considered in any of the following cases:
a) the application or documentation is not transmitted by means of remote transmission;
b) the application or documentation does not contain at least one of the elements specified in Annex No 2 to the Order;
c) the application or documentation is not legible, contains inconsistent data or information or does not relate to the taxpayer/applicant;
d) the legal basis on the basis of which the requested tax solution was proposed changes within the period set for the preliminary analysis, after the date of submission of the request for issuing the tax solution;
e) the request for the issuance of a tax solution concerns several tax liabilities;
f) the fee for the issuance of the tax solution has not actually been collected by the deadline for the preliminary examination.
The competent tax authority shall notify the taxpayer/payer, within 15 days of the completion of the preliminary analysis, of the fact that the request is not taken into account and of the possibility of submitting a new request, i.e. of paying the fee for the issuance of the tax solution for the situation referred to in point f) above.
The preliminary discussion, including the statements or comments of the representatives of the competent tax authority participating in the discussion, shall not be binding and shall not constitute a commitment to approve/reject the application for the issuance of the tax solution.
It is important to point out that participation in the preliminary discussion does not amount to the initiation of the procedure for the issuance of the tax solution and does not affect the order of resolution of an application that is subsequently submitted by the taxpayer/payer.
The main elements that the application for the issuance of the tax solution must contain:
- identification data of the taxpayer/applicant and his/her legal representative, if applicable;
- an overview or summary of the proposed transactions;
- a detailed presentation of the relevant information in relation to the proposed transactions;
- a presentation of the relevant transactions completed in part or in full prior to the submission of the application for the issuance of the tax solution;
- the proposed transactions;
- the tax or non-tax purpose of each proposed transaction;
- full analysis of the proposed transactions in terms of their economic purpose;
- the legal basis applicable to the proposed transactions;
- the taxpayer’s/payer’s interpretation of the tax rules applicable to the proposed transactions and the proposed content of the tax solution;
- proof of payment of the tax solution issuing fee
The application, the documentation and any further communication shall be sent exclusively by electronic means of distance transmission.
The request for the issuance of the tax solution is rejected, by order of the Minister of Finance, in situations such as:
– the future factual tax situation presented by the taxpayer/payer includes identical or similar transactions that were the subject of a previous tax return of the taxpayer/payer or an affiliated entity;
– the future factual tax situation includes transactions that are hypothetical or involve a high degree of uncertainty;
– the transactions fall within the scope of legal provisions under review;
– the subject matter of the request concerns matters regulated by legislation other than the Tax Code;
– the request concerns matters relating to accounting or commercial principles; (…)
Prior to the issuance of the tax solution, the competent tax authority shall communicate the draft tax solution to the taxpayer/payer in order to formulate a point of view.
Legal basis:
-MF Order 1178/2023 for the approval of the Procedure for the issuance of the anticipated individual tax solution;
-Tax Procedure Code (approved by Law no.207/2015, published in MO no.547 of 23.07.2015), with subsequent amendments and additions;
-Tax Code (approved by Law no.227/2015, published in the Official Gazette no.688 of 10.09.2015), as amended and supplemented.