In the Official Gazette (Part I) no. 395 of 9 May 2023 was published Order 874/1.429 – Order of the Minister of Labour and Social Solidarity and the Minister of Finance on the approval of the procedure for the application of the provisions of Article IV paragraph (1) and (2) of Law no. 72/2022 for the cancellation of certain tax obligations and for the amendment of certain normative acts.
This document approves the procedure for the tax reclassification of the amounts granted in the form of the delegation allowance, the secondment allowance, including the allowance specific to transnational secondment, and the additional benefit granted under the mobility clause, received by employees, which may be carried out by the tax authorities pursuant to Article 11 paragraph (1) of Law no. 227/2015 on the Tax Code, with subsequent amendments and additions, following controls carried out by the competent authorities of the Labour Inspectorate, which ascertain the situations of delegation, secondment, transnational secondment in which the employees may find themselves, as appropriate, according to the law.
1. Verification by the ITM of the situations declared by employers regarding the delegation, secondment or transnational secondment of employees:
According to the legal regulations, the Labour Inspectorate, through the territorial labour inspectorates, proceeds, within the framework of the controls carried out, to ascertain the situations of delegation, secondment, transnational secondment in which the employees may find themselves, as the case may be, according to the law, or the non-observance of the legal provisions applicable to the mentioned situations and issues control reports and, as the case may be, reports of ascertainment and sanctioning of offences.
In the control documents drawn up, the Labour Inspectorate, through the territorial labour inspectorates, confirms, on the basis of the documents submitted by the employer, the nature of the income granted in the form of delegation allowance, secondment allowance, including the allowance specific to transnational secondment, and the additional benefit granted on the basis of the mobility clause, according to the provisions of Article IV paragraph (2) of Law no. 72/2022 for the cancellation of certain fiscal obligations and for the amendment of certain normative acts.
The Labour Inspectorate, through the territorial labour inspectorates, carries out these controls both at the request of public authorities and institutions, as well as any other entities, and ex officio, as a result of its own control actions.
The aforementioned control documents shall be forwarded to the territorial tax authorities of the National Tax Administration Agency, within a maximum of 45 working days from the date of their conclusion, in order to be taken into account in any tax inspection actions to be carried out on the taxpayers in question.
2. Tax reclassification of the amounts granted in the form of delegation allowance, secondment allowance, including the allowance specific to transnational secondment, and the additional benefit granted under the mobility clause, received by employees, carried out by the territorial tax authorities of ANAF:
The territorial tax authorities of the National Tax Administration Agency (ANAF) select on the basis of risk analysis the taxpayers for which the Labour Inspectorate, through the territorial labour inspectorates, has carried out specific controls according to the ones mentioned in item 1 and for which the control documents have been sent to the National Tax Administration Agency.
The territorial tax authorities of the ANAF base their findings with regard to income tax and social contributions, taking into account the findings made by the Labour Inspectorate, through the territorial labour inspectorates, on the nature of the income granted to employees in the form of delegation allowance, secondment allowance, including the allowance specific to transnational secondment, and the additional benefit granted under the mobility clause.
Upon completion of the verifications, administrative-fiscal acts are concluded, in accordance with the provisions of Law no. 207/2015 on the Tax Procedure Code, as amended and supplemented.
If, following the risk analyses and unannounced controls carried out by the territorial tax authorities of ANAF, situations of transnational delegation/deduction/removal, as well as granting of additional benefit under the mobility clause, are identified in which the employees of the taxpayers who were the subject of the risk analysis/unannounced controls are found, in order to confirm the nature of the income made by the employees of the taxpayers in question, the territorial tax authorities of ANAF request the territorial labour inspectorates subordinated to the Labour Inspectorate, within a maximum of 15 working days from the date of the completion of the risk analysis or the date of the conclusion of the report following the unannounced control, to carry out verifications in order to ascertain one of the situations of delegation, secondment, transnational secondment in which the employees of the taxpayers in question find themselves, according to the provisions of Article IV paragraph (2) of Law no. 72/2022 for the cancellation of certain tax obligations and for the amendment of certain normative acts.
Following receipt of the control documents from the territorial labour inspectorates, ANAF may carry out tax inspection actions in which it orders, where appropriate, the tax reclassification of the amounts granted in the form of delegation allowance, secondment allowance, including the allowance specific to transnational secondment, and the additional benefit granted under the mobility clause, received by employees, pursuant to the provisions of Article 11 paragraph (1) of Law no. 227/2015 on the Tax Code, with subsequent amendments and additions, taking into account the findings made by the Labour Inspectorate, through the territorial labour inspectorates.
Legal basis:
– Order MMSS 874/2023 approving the procedure for the application of the provisions of Article IV paragraph (1) and (2) of Law no. 72/2022 for the cancellation of certain tax obligations and for the amendment of certain normative acts;
– Tax Procedure Code (approved by Law no. 207/2015, published in MO no. 547 of 23.07.2015), as amended and supplemented.