Situation: Given that in April 2023 the gross monthly basic salary of an employee is reduced from 5,000 lei to 3,000 lei according to the individual employment contract, can he benefit in these conditions from the non-taxable amount of 200 lei?
Solution:
According to Article XXXVII paragraph (1) of the EMERGENCY ORDINANCE no.168 /2022 on some fiscal-budgetary measures, extension of some deadlines, as well as for the modification and completion of some normative acts, by derogation from the provisions of article 78, article 139 paragraph (1), article 140, article 157 paragraph (1) and article 220 4 paragraph (1) of Law no. 227/2015, with subsequent amendments and additions, starting from 1 January 2023, in the case of employees working under individual employment contract, full-time, at the place where the basic function is located, income tax is not due and is not included in the monthly basis for calculating the mandatory social contributions the amount of 200 lei / month, representing income from wages and salaries, if the following conditions are cumulatively met:
- the level of the gross monthly basic salary established according to the individual employment contract, not including bonuses and other allowances, is equal to the level of the gross minimum wage per country guaranteed in payment established by Government decision, in force in the month to which the income relates
- the gross income from wages and salaries, as defined in article 76 paragraph (1)-(3) of Law no. 227/2015, with subsequent amendments and additions, under the same individual employment contract, for the same month, does not exceed the level of 4,000 lei inclusive.
According to paragraph (2), the condition provided for in paragraph (1) letter a) shall not be deemed to be fulfilled if, in the period between the date of entry into force of this Emergency Ordinance and 31 December 2023, the level of the gross monthly basic salary established according to the individual employment contract is reduced, without including bonuses and other allowances.
Therefore, the non-taxable amount of 200 lei applies if the level of the gross salary (from the CIM) is fixed at 3,000 lei, and the gross income achieved in the month (together with other bonuses and allowances, mentioned in article 76 paragraph (1)-(3)) does not exceed 4,000 lei inclusive.
The tax facility of 200 lei non-taxable does not apply if the employer reduces the gross basic salary to 3,000 lei and can thus benefit from the 200 lei non-taxable between 9 December 2022 (the date on which the EMERGENCY ORDINANCE (OUG) no. 168/2022 came into force) and 31 December 2023.
In conclusion, in order to grant this benefit, the condition must be fulfilled, namely that during the entire year 2023, the salary must not be modified in minus, in the mentioned case, one cannot benefit from the tax facilitation concerning the 200 non-textable lei starting from 01.04.2023, because the decrease of the gross basic salary was made in the period expressly mentioned by the law.
Legal basis:
Emergency Ordinance 168/2022 on some fiscal-budgetary measures, extension of some deadlines, as well as for the modification and completion of some normative acts.