Fiscal regime in case of an intra-community delivery of waste (case)

Situation: ABC SRL, a company registered for VAT purposes in Romania, intends to sell plastic waste to another company registered for VAT purposes in Italy.

What is the tax treatment in this situation? Who collects the environmental tax?

 

Solution:

According to the provisions of Article 294 paragraph 2 letter a) of the Fiscal Code, the intra-Community supply of goods is exempt from VAT, but to justify the VAT exemption the company from RO will have to hold the documents specified in Article 45a of the Implementing Regulation (EU) no. Council Regulation (EC) No 282/2011 of 15 March 2011 laying down measures for the implementation of Directive 2006/112 / EC on the common system of value added tax, as amended by Implementing Regulation (EU) 2018/1912 of the Council of 4 December 2018 amending the Implementing Regulation (EU) no. 282/2011 regarding certain exemptions for intra-community operations, hereinafter referred to as Regulation 282/2011, or those provided for in Article 10 paragraph 11 of OMFP 103/2016, respectively:

  1. transport documents, such as a signed CMR document or a signed consignment note, a bill of lading, the specific air waybill document; and
  2. one of the following documents: an insurance policy corresponding to the dispatch or transport of the goods, bank documents attesting payment for the dispatch or transport of the goods, official documents issued by a public authority, such as a notary, attesting the arrival of the goods in the Member State of destination, a document certifying receipt of the goods, issued by a depositary in the Member State of destination other than the buyer of the goods, a written statement from the buyer stating that the goods have been dispatched or transported to the Member State of destination and containing : date of issue, name and address of the buyer, as well as the quantity and nature of the goods, date and place of arrival of the goods, identification of the person who accepts the goods on behalf of the buyer.

Obligations regarding the environmental tax:

According to Article 9 (1) (a) of the Emergency Ordinance (OUG) no. 196/2005, the income of the environmental fund consists of: (…) a contribution of 2% of the income from the sale of waste, obtained by to the owner of the waste, natural or legal person.

The amounts are withheld at the source by the economic operators that carry out activities of collection and / or capitalization of the waste, which have the obligation to transfer them to the Environmental Fund;

We mention that in the Methodology for calculating the contributions and fees due to the Environmental Fund, modified by OMMAP no. 2413/2016 specifies in articles 5 and 6, that the obligation to calculate, retain, declare and transfer to the Environmental Fund this contribution, belongs to the economic operators that carry out activities of collection and / or recovery of waste .

Thus, it results that the obligation to calculate, withhold, declare and transfer to the Environmental Fund this contribution is not declared by the company that sells the waste, but by the economic operator that carries out collection and / or recovery activities of waste.

If the company is not authorized for waste collection and / or recovery operations and, moreover, the waste will leave Romania, the waste collector that purchases them will apply the legislation in its country.

Thus, considering the previous mentions, the company ABC SRL has no obligation towards the Romanian Environmental Fund. 

Legal basis:

Emergency Ordinance (OUG) 196/2005 on the Environmental Fund, with subsequent amendments and completions;

– Fiscal Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), with subsequent amendments and completions;

– Methodological Norms for the application of the Fiscal Code (approved by HG no. 1/2016).