According to Article 266, point 28 of the Tax Code, electronically supplied services include, in particular, the services listed in Annex II to Directive 112 and in Article 7, paragraph 1 of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax, as amended and supplemented.
Where the supplier of a service and his customer communicate by means of electronic mail, this does not in itself mean that the service provided is an electronically supplied service.
Please note that Annex II of Directive 2006/112/EC contains an indicative list of electronically supplied services, which includes only some of the services that fall into the category of electronic services:
- provision and hosting of Internet sites, remote maintenance of software and equipment:, hosting of websites and web pages and their maintenance, online data storage, online provision of disk space;
- software provision and updating: accessing or downloading software, drivers for downloading, automatic online installation of filters on websites, automatic online installation of firewalls;
- provision of images, text and information and provision of databases: subscriptions to online newspapers and magazines, weblogs, digitised content of books and other electronic publications, provision of advertising space, including banner advertising on a website/webpage, use of search engines and internet directories;
- provision of music, films and games, including gambling and betting, and of political, cultural, artistic, sporting, scientific and entertainment broadcasts or events: accessing automated online games that depend on the Internet, downloading games to computers and mobile phones, accessing or downloading films;
- provision of distance learning services: internet-dependent automatic distance learning, exercise books completed by students online and marked automatically without human intervention.
Provision of electronic services to non-EU individuals:
According to the provisions of Article 278, paragraph (5), letter h), point 3 of the Tax Code, the provision of electronic services to non-EU individuals takes place outside Romania, at the residence/residence of the customer.
Thus, in the case of electronic services, invoices will be issued without VAT because the services will not be considered taxable transactions in Romania by not fulfilling the cumulative condition of article 268, paragraph (1), letter b) of the Tax Code. These services are declared under rd. 3 of the VAT return D300 (“Supplies of goods or services for which the place of supply is outside Romania (in the EU or outside the EU), as well as intra-Community supplies of goods, exempted according to article 294, paragraph (2), letter b) and c) of the Fiscal Code, of which: …”).
On the invoice issued is written the mention “not taxable in Romania” and the legal basis “Law no. 227/2015, article 278, paragraph (5) letter h)”.
Provision of services to non-taxable persons established in the EU (individuals):
In the case of the provision of services to non-taxable persons established in the EU (individuals), in a country other than Romania, the services are taxable in Romania up to the threshold of 10,000 euros or the equivalent of this amount in national currency and if this threshold has not been exceeded during the previous calendar year.
Please note that for Romania, the equivalent amount in national currency is 46,337 lei.
Provided that the limit is not exceeded, the place of supply of these services is considered to be in Romania.
After exceeding the threshold of 10.000 euro/46.337 lei for all services rendered to non-taxable persons who are established, have their permanent domicile or habitual residence in any Member State, the provisions of article 278, paragraph (5), letter h) of the Tax Code apply and the services are no longer taxable in Romania because the conditions of article 268, paragraph (1) of the Tax Code are not cumulatively fulfilled and the place of supply is not in Romania.
In this situation, the invoice is issued with the mention not taxable in Romania according to article 278, paragraph (5), letter h) of the Fiscal Code. However, after the threshold has been exceeded, for services rendered to non-taxable persons in the EU, the company is obliged to pay VAT in the state where they are taxable – where the beneficiary is established, has a permanent domicile or a habitual residence.
The supplier’s obligation is to register for VAT in each Member State of consumption where the non-taxable person is established, has his permanent address or usually resides.
To simplify things, the provider of electronic services to non-taxable persons established in the European Union can opt to use the EU regime (also known as One Stop Shop), as follows:
– must be registered for VAT purposes according to Article 316 of the Fiscal Code;
– is no longer required to register in each Member State of consumption (where the recipient is established, has a permanent address or usual residence);
– in order to use the EU scheme and declare VAT on the supply of electronic services, is obliged to register in Romania – the Member State of registration;
– uses only the VAT registration code assigned under Article 316 for all electronic services subject to the special scheme;
– submits in Romania a single special VAT return, declaring the VAT due to each Member State of consumption and makes a single payment in Romania which will be distributed by the Romanian State to the Member States of consumption, based on the special VAT return.
The EU – One Stop Shop (OSS) scheme is a special optional scheme for declaring and paying in one Member State (e.g. Romania) the VAT due in other Member States, for supplies of services to non-taxable persons established in another Member State and intra-Community distance sales of goods (Article 315 of the Tax Code).
Thus, on the date of commencement of the provision of services, the supplier submits in electronic format the declaration of commencement of his activity subject to the special regime, which is completed and submitted via the electronic portal provided by ANAF, accessing the One Stop Shop section:
https://www.anaf.ro/anaf/internet/ANAF/servicii_online/one_stop_shop
Form 398:
During the application of the EU special scheme, the taxable person is obliged to submit a quarterly special VAT return (form 398) by the end of the month following the end of the calendar quarter, regardless of whether or not goods have been supplied or services have been rendered for which the special scheme is used.
According to Article 315 of the Fiscal Code, the special VAT return must contain the following information:
a) the special VAT registration code provided for in paragraph 4;
b) the total amount, exclusive of tax, the applicable rates of tax and the total amount of the corresponding tax subdivided by rates, due to each Member State of consumption in which the tax is chargeable, in respect of the following supplies of goods or services covered by this Article made during the tax period:
1. intra-Community distance sales of goods;
2. supplies of goods in accordance with Article 270(16), where the dispatch or transport of those goods begins and ends in the same Member State;
3. the supply of services;
c) the total amount of tax due in the Member State of consumption.
The special VAT return also contains changes relating to previous tax periods.
If the goods are dispatched or transported from Member States other than Romania, the special VAT return contains, in addition to the information mentioned above, the total amount, excluding tax, and the applicable tax rates, the total amount of the corresponding tax subdivided by rates and the total amount of tax due to each Member State of consumption in which the tax is chargeable in respect of the following supplies of goods covered by this Article during the tax period for each Member State, other than Romania, from which such goods are dispatched or transported:
a) intra-Community distance sales of goods, other than by a taxable person in accordance with Article 270(16). For such supplies, the VAT return shall also include the individual VAT identification number or tax registration code allocated by each of the Member States concerned;
b) intra-Community distance sales of goods and supplies of goods where the dispatch or transport of those goods begins and ends in the same Member State, carried out by a taxable person in accordance with Article 270(16). For such supplies, the VAT return shall also include the individual VAT identification number or tax registration code allocated by each of those Member States, if available.
If amendments to the special VAT return are requested after its submission, these amendments shall be included in a subsequent return no later than three years after the date on which the original return was due.
The subsequent VAT return identifies the relevant Member State of consumption, the tax period and the total amount of VAT resulting from the correction of supplies, which may also be negative.
Please note that the special VAT return is to be completed in euro. If the supplies of goods and services are paid for in other currencies, the exchange rate in force on the last day of the tax reporting period is to be used when completing the return.
The exchange rates used are those published by the European Central Bank for the day in question or those of the following day if they are not published on that day.
Form 398 is submitted electronically on the www.e-guvernare.ro portal using a qualified digital certificate.
In addition, the taxable person using the EU special scheme must keep a register of the transactions to which this special scheme applies, allowing the competent tax authorities of the Member States of consumption to determine whether the 398 return is correct. These registers shall be made available electronically at the request of the competent tax authority and the Member States of consumption.
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;
– Methodological Norms for the application of the Tax Code (approved by HG no. 1/2016);
– ANAF Order no. 1387/2021 for the approval of the Registration Procedure for the use of one of the special regimes for taxable persons providing services to non-taxable persons or making distance sales of goods, as well as for the declaration of value added tax, according to the provisions of article 314, article 315 and article 315^2 of the Tax Code, in case Romania is a Member State of registration, and for the amendment of some procedural provisions.