Extra corporate or micro tax redirection – procedure

In the Official Gazette (Part I) no. 643 of 13 July 2023 was published ANAF Order no.1090 for the approval of the Procedure for the determination and regularization of the difference in corporate income tax / income tax on microenterprises that has been redirected in excess of the amounts that can be redirected, according to the law, as well as for the amendment and completion of the Order of the President of ANAF no. 587/2016 for the approval of the model and content of the forms used for the declaration of taxes and duties with self-assessment or withholding at source.

We remind you that, at present, there is the possibility for taxpayers to redirect to ONGs and/or religious establishments the difference in corporate tax/micro that they did not use for sponsorship. Here we are referring to the difference between the maximum amount provided for by the Tax Code called tax credit and the amount they have already used, i.e. the amount representing the sponsorship made.

Difficulties arise when the taxpayer corrects the corporate/micro tax by reducing it, in which case the company has redirected more than the amount legally due.

Therefore, ANAF Order 1090/2023 was published, from which it follows that, in such situations, taxpayers owe to the state budget both the difference redirected in excess of the amounts that could have been redirected, and the calculated accessory obligations (interest and penalties) calculated from the date of the transfer of the difference in corporation tax that was redirected in excess.

The difference can be paid to the state budget after the company files form 100:

https://static.anaf.ro/static/10/Anaf/Declaratii_R/100.html

Thus, Order 1090/2023 brings the following changes:

• The procedure for the determination and adjustment of the difference in corporate income tax/income tax on microenterprises that has been redirected in excess of the amounts that may be redirected, according to the law, as provided in the Annex that forms an integral part of this Order.

• Two new items in the “Nomenclature of the obligations to pay to the state budget”:

• Instructions for completing the form 100 “Declaration of payment obligations to the state budget, for the 2 categories of tax obligations:

– The difference in corporate income tax that has been overpaid is declared if, after the filing of the overpayment form, the corporate income tax due for the year for which the overpayment was ordered is adjusted downwards and the taxpayer has overpaid more than the amount that could be overpaid according to the law.

The taxpayer owes to the state budget the difference in corporate income tax that has been redirected in excess, as well as the accessory tax obligations calculated from the date of transfer of the difference in corporate income tax that has been redirected in excess from the account 20.A.01.03.00 “Amounts redirected from corporate income tax”, coded with the tax identification code assigned to the State Treasury (8609468), to the bank account of the beneficiary entity until the date of extinction of the tax due.

– The difference in income tax on microenterprises that has been redirected in excess shall be declared in the event that, after the submission of the redirecting form according to Article 56 paragraph (2_1) of the Tax Code, the income tax on microenterprises due for the year for which the redirecting was ordered is corrected in the sense of its decrease, and the taxpayers have redirected an amount greater than the amount that could be redirected, according to the law.

The taxpayer owes to the state budget the difference in microenterprise income tax that was redirected in excess, as well as the accessory tax obligations calculated from the date of transfer of the difference in microenterprise income tax that was redirected in excess from account 20.A.02. .49.00 “Amounts redirected from microenterprise income tax”, coded with the tax identification code assigned to the State Treasury (8609468), to the bank account of the beneficiary entity until the date of extinction of the tax due.”

Procedure for the determination and adjustment of the difference in corporate income tax/income tax on microenterprises that has been overpaid:

The procedure is applied by taxpayers liable for corporate income tax / income tax on microenterprises that cumulatively meet the following conditions:

a) they have ordered the redirection of some amounts of corporate income tax/income tax on microenterprises to carry out sponsorships and/or acts of patronage or granting private scholarships, according to Article 42 and 56 of Law no. 227/2015 on the Tax Code, as amended and supplemented;

 b) have adjusted the corporate income tax/income tax due by microenterprises for the year for which the redirection was ordered, in order to reduce it.

Provided that, subsequent to the submission of form 177 “Request for redirection of corporate income tax/microenterprise income tax”, the corporate income tax/microenterprise income tax due for the year for which the redirection was ordered is adjusted downwards, and taxpayers have redirected an amount greater than the amount that could be redirected, according to the law, they owe to the state budget the difference in corporate income tax/microenterprise income tax that was redirected in excess.

In applying the procedure, taxpayers liable for corporate income tax/microenterprise income tax determine:

a) the amount of tax or tax difference that can be redirected by taking into account the amount of corporate income tax/microenterprise income tax due reduced, established following the adjustment;

 b) the difference in corporation tax/microenterprise income tax that has been redirected in excess of the amount that can be redirected, according to the law.

Determination of the corporate income tax difference that has been overpaid:

 If the corporate income tax for the year for which the redirection is ordered is adjusted downwards, the amount of corporate income tax or the corporate income tax difference that can be rerouted is determined on the basis of the adjusted data by subtracting the minimum amount established, according to Article 25, paragraph 4, letter i) of Law no. 227/2015 on the Tax Code, as amended and supplemented, of the amounts representing sponsorship and/or patronage, private scholarships, granted to the beneficiary entities in the year for which the annual income tax return was filed, according to article 25, paragraph (4), letter i) and t) and the amounts carried forward, as entered in the form 101 “Income tax return”, the amending return, of the respective year.

For the purpose of determining the corporate income tax limit, provided for in Article 25, paragraph (4), letter i), point 2 of the Tax Code, the deduction from it of the amounts related to the tax credit and the exempted/reduced corporate income tax shall also be taken into account, in accordance with the provisions of the Order of the President of the National Tax Administration Agency no. 3.386/2016 for the approval of the model and content of forms 101 “Corporate income tax return” and 120 “Excise tax return”, as amended and supplemented.

The difference in corporate income tax that has been redirected in addition is determined by subtracting from the amount redirected by form 177 “Request for the redirecting of corporate income tax/income tax on microenterprises” the amount that can be redirected, determined according to point 3. letter a), point 4 and 5.

Determining the difference in microenterprise income tax that has been overpaid:

If the microenterprise income tax for the year for which the redirection is ordered is adjusted downwards, the amount of microenterprise income tax or the amount of the difference in microenterprise income tax that can be redirected by subtracting it from the amount determined shall be determined on the basis of the adjusted data, according to Article 56, paragraph (11) of the Tax Code, calculated for the whole tax year, of the amounts granted to the beneficiary entities in that year according to Article 56, paragraphs (11), (15) and (22) of the Tax Code and the amounts carried forward.

The difference in microenterprise income tax that has been redirected in excess is determined by subtracting from the amount redirected by form 177 “Request for redirecting corporate income tax/microenterprise income tax” the amount that can be redirected, determined according to point 3(a) and point 7.

The positive difference resulting from the calculation made, representing the difference in corporate income tax/income tax on microenterprises that has been redirected in addition to the amounts that can be redirected, shall be declared by the taxpayer using form 100 “Declaration on payment obligations to the state budget”, approved by the Order of the President of the National Tax Administration Agency no. 587/2016 for the approval of the model and content of the forms used for the declaration of taxes and duties with self-assessment or withholding tax regime, with subsequent amendments and additions.

Legal basis:

– Fiscal Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), as amended and supplemented;

– ANAF Order no.1090/2023 for the approval of the Procedure for the determination and regularization of the difference in corporate income tax/income tax on microenterprises that has been redirected in excess of the amounts that can be redirected, according to the law, as well as for the modification and completion of the Order of the President of the National Agency for Tax Administration no. 587/2016 for the approval of the model and content of the forms used for the declaration of taxes and duties with self-assessment or withholding tax;

– ANAF Order 587/2016 for the approval of the model and content of the forms used for the declaration of taxes and duties with self-assessment or withholding tax.