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Order of the Ministry of Public Finance no. 2100/2020

In this issue:

Order of the Ministry of Public Finance no. 2100 / 2020 for the approval of the Procedure for cancellation of the ancillary payment obligations, published in the Official Gazette, Part I no. 635 of 20 July 2020.

 

Order of the Minister of Public Finance no. 2100 / 2020 (the ”Order”) regulates the Procedure for cancellation of the ancillary payment obligations (the “Procedure”) according to the provisions of chapter II of the Emergency Ordinance no. 69/2020 for the amendment and supplement of Law no. 227/2015 on the Fiscal Code, as well as for the establishment of some fiscal measures (the "Ordinance").

The Procedure regulates the possibility for the taxpayers to submit a notification expressing their intention to benefit from the tax amnesty. The notification has the effect of deferring the payment of the ancillaries until the date of settling the application for cancellation of the ancillaries or until the 15 December 2020, in case of non-submission of this application.

As a general rule, the application for cancellation must be submitted by 15 December 2020 or within 90 days as of the date of notification of the tax assessment in the case of cancellation of ancillaries related to the main budgetary obligations due prior to 31 March 2020, individualized in tax decisions issued as a result of a tax audit or a verification of a personal tax situation that is pending on 14 May 2020.

 

I. Budgetary obligations subject to the Procedure for cancellation of the ancillary obligations

This Procedure applies to budgetary obligations administered by the central tax body (including liabilities individualized in enforceable deeds from the records of the central tax body competent to recover them), but also to the obligations administered by the customs bodies.

The Procedure does not apply to budgetary obligations administered by other institutions that are not in the records of the central tax body, such as the recoverable amounts established by the Court of Accounts or other competent control bodies, for which the deeds by which they are individualized have not been communicated or are not communicated to the central tax bodies. In this case, the application for cancellation of the ancillary payment obligations shall be submitted and settled by the institution/public authority administering the respective budgetary obligations.

 

II. Who can benefit from the cancellation of the ancillaries

Debtors who can benefit from the facilities provided in this Procedure are all categories of debtors, such as natural or legal persons, regardless of the form of ownership, associations and other entities without legal personality, natural persons who carry out economic activities independently or exercise liberal professions, administrative-territorial units or administrative-territorial subdivisions of Bucharest or public institutions.

 

The Procedure also applies to the following debtors:

  • debtors declared insolvent;
  • persons who are jointly liable (the Procedure incorporates distinct provisions for this situation);
  • debtors in insolvency proceedings or in dissolution.
 

III. The object of tax facilities

The central tax body or, as the case may be, the authorities / institutions that have communicated to the tax body enforceable deeds for recovery, may grant the following tax facilities:

  1. deferral of payment of ancillary payment obligations outstanding on the date of issuance of the tax clearance certificate, until the date of settling of the application for cancellation of ancillaries or until 15 December 2020 inclusive, in case of non-submission of this application, for debtors who notify the tax body in accordance with art. XIII of the Ordinance;
  2. cancellation of ancillary payment obligations.
 

According to the Procedure, any ancillary payment obligations may be subject to tax facilities (interest, late payment increments, late payment penalties, non-declaration penalties etc.).

Payment shall not be deferred and the ancillaries relating to principal budgetary obligations representing State aid to be recovered or funds due to the budget of the EU shall not be canceled, if the institution or public authority which sent the enforceable deed to the tax authority for recovery must transfer the aforementioned ancillaries to the EU budget, according to the law.

Obligations related to the main budgetary obligations established by tax assessments submitted after the expiry of the limitation period of the right to assess tax obligations may also be subject to the cancellation of ancillary payment obligations.

 

IV. Deferred payment procedure

The debtors may express their intention to benefit from the cancellation of the ancillary payment obligations according to the Ordinance, by submitting a notification according to the form provided in Annex no. 1 of the Order, as follows:

  1. at the registrar of the competent central tax body;
  2. by post by registered letter with notice of receipt;
  3. through the "Virtual Private Space" service.
 

After receiving the notification, the tax body proceeds to:

  1. analyze that the debtor has filed all tax returns according to the tax vector until the date of submitting the notification. The tax authority has the obligation to guide the taxpayer who has not properly filed all tax returns;
  2. perform the settlement, offsetting and any other operations necessary in order to establish with certainty the budgetary obligations that represent a condition for granting the tax facility.
 

After the submission of the notification, within 5 working days as of the date of its registration, the tax body issues and communicates to the debtor the decision regarding the ancillary payment obligations and the tax clearance certificate.

From the date of issuing the decision to defer payment of ancillary payment obligations, it is important to note that for the ancillary payment obligations that are subject to deferred payment:

  1. the enforcement procedure does not start and is not suspended;
  2. they are not settled until the request for cancellation of the ancillaries is solved or until 15 December 2020, as the case may be.
 

V. The procedure for granting cancellation of ancillary payment obligations

The application for cancellation must be submitted by 15 December 2020 or within 90 days as of the date of communication of the tax decision in case of cancellation of the ancillaries related to the main budgetary obligations due prior to 31 March 2020 individualized in tax decisions issued following a tax audit or a verification of a personal tax situation that is pending on 14 May 2020.

Within a maximum of 5 working days, the tax body analyzes whether the conditions provided for in the Ordinance have been fulfilled, issues and communicates the decision regarding the ancillary payment obligations and, as the case may be:

  • issues the decision to cancel the ancillary payment obligations or
  • issues the decision to reject the application for the cancellation of the ancillary payment obligations, only after the mandatory hearing of the taxpayer.
 

The Procedure is also applicable to taxpayers who have an ongoing payment rescheduling procedure. In this case, the notification of intention to benefit from tax amnesty is not necessary and the tax body will not issue a tax clearance certificate or a decision to defer payment.

If ancillary payment obligations have been settled after 14 May 2020, as well as in the case of accessories paid in installments that have payment deadlines after 14 May 2020 and which may be subject to cancellation, the debtor will be paid back the paid and subsequently canceled.

 

VI. The withdrawal of the notification / request for cancellation of accessories

The notification can be withdrawn by the debtor at any time, by accordingly submitting a request to the tax body.

Similarly, the request for cancellation of ancillaries can be withdrawn by the debtor at any time, by accordingly submitting a request to the tax body. By withdrawing the application, the debtor reserves the right to submit a new application for cancellation of the ancillaries, with the observance of the conditions provided for by the Ordinance.

 

VII. Takeaway

The Procedure details how taxpayers can access the tax amnesty provided for in Chapter II of the Emergency Ordinance no. 69/2020 through which the cancellation of a wide category of ancillary payment obligations can be obtained.

Feel free to reach out to us should you like to receive detailed information on the provisions brought by this normative act as well as its applicability to your business.

Also, EY can assist you with tailoring advices on how to comply with the legal requirements for obtaining the tax amnesty provided by Emergency Ordinance no. 69/2020 (either for you as a natural personal, for your employees, or for the Company you represent).

 

For more details, you can consult the Official Gazette no. 635 / 20 July 2020 or you can contact us directly using the contact details below.

 
Prepared by:
Emanuel Băncilă, Partner – Tax Policy and Controversy Leader
 
For additional information, please contact:
Alex Milcev – Partner, Tax & Law Leader Romania
 
Ernst & Young SRL
Bucharest Tower Center Building,
22nd Floor, 15-17 Ion Mihalache Blvd.,
Sector 1, 011171, Bucharest, Romania
Tel: (40-21) 402 4000, Fax: (40-21) 310 7124
Email: office@ro.ey.com
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