Recategorization by the National Agency for Fiscal Administration (ANAF) of certain personal income as taxable income – restrictions and amnesties
Under what conditions can ANAF reclassify amounts granted by employers as per diems into taxable salary income?
Order 874/1429/2023 approving the procedure for the implementation of provisions of Article IV, paragraphs (1) and (2) of Law No. 72/2022 for the cancellation of certain tax obligations and the amendment of certain normative acts, approves the procedure for the tax reclassification of per diems as taxable salary income.
Starting from April 2022, in accordance with the Law 72/2022, which amended the Fiscal Code, Article 76, paragraph (2), letter k), the following are considered taxable salary income: delegation allowances, secondment allowances, including specific allowances for transnational secondments, additional benefits received by mobile workers as provided in Government Decision No. 38/2008 on the organization of working time for persons performing mobile road transport activities, as further amended, as well as any other similar amounts, other than those granted for transportation and accommodation expenses, received by employees according to the legislation in the matter during their activity in another locality, whether in the country or abroad, in the interest of the service, for the portion that exceeds the non-taxable threshold established as follows:
- in the country, 2.5 times the legally established level for allowances, by government decision, for personnel of public authorities and institutions, up to a limit of 3 base salaries corresponding to the occupied position;
- abroad, 2.5 times the legally established level for per diems, by government decision, for Romanian personnel sent abroad for temporary missions, up to a limit of 3 base salaries corresponding to the occupied position.
The threshold corresponding to the value of 3 base salaries for the occupied position is calculated by dividing the 3 salaries by the number of working days in the respective month, and the result is multiplied by the number of days during the delegation/secondment/performance of work in another locality, whether in the country or abroad.
We also remind that starting from January 1, 2023, according to Government Ordinance 16/2022, which amended the Fiscal Code, additional benefits received by employees based on the mobility clause according to the law, other than those mentioned above, are considered taxable salary income for the portion that exceeds 2.5 times the legally established level for delegation/secondment allowances, by government decision, for personnel of public authorities and institutions. This in-kind benefit, along with 7 other types of benefits, must not exceed the monthly threshold of up to 33% of the base salary corresponding to the occupied position or the monthly pay/salary granted according to the law, in order to be considered non-taxable and not included in the calculation base for social contributions.
In this context, during tax inspections, ANAF will verify both compliance with the non-taxable thresholds of these benefits granted by employers to employees, and whether the nature of the amounts granted (their economic substance) corresponds to their designation (their legal form). Should the control authorities consider that the amounts granted do not have the character of per diems, they may decide to reclassify them as taxable salary income and calculate income tax and social contributions.
However, according to Order 874/1429/2023, ANAF can no longer reclassify them without the Labor Inspection authorities pronouncing on the nature of the incomes granted in the form of delegation/secondment allowances or specific allowances for transnational secondments, or the additional benefits granted based on the mobility clause.
The Labour Inspectorate has the obligation to verify the nature of the mentioned incomes either at the request of public authorities and institutions or any other entities, as well as ex officio. Following the conducted inspections, the Territorial Labour Inspectorate (ITM) concludes control reports/minutes of finding and sanctioning contraventions, which will be transmitted to ANAF within 45 working days.
If the Territorial Labour Inspectorate verification is conducted ex officio, ANAF selects taxpayers for further inspections based on risk criteria.
If ANAF identifies, through risk analysis and unannounced inspections, situations with potential reclassifications, it shall request within a maximum of 15 working days that the the Territorial Labour Inspectorate conduct verifications.
Reclassifications carried out by ANAF are based on Article 11, paragraph (1) of the Fiscal Code and will be substantiated by the conclusions of the Labour Inspection.
How is the tax amnesty applied to gift vouchers granted to employees by individuals other than employers, prior to the date of December 31st 2020, for which ANAF has reclassified them as taxable salary income?
Order No. 906/2023 approving the Procedure for the cancellation of tax obligations that are subject to annulment according to Law No. 43/2023 for the cancellation of certain tax obligations, included in the list prepared and transmitted by the control structure, as well as the methods of their refund, has been published in the Official Gazette, Part I, No. 586 on June 28th 2023.
Taxpayers who have been subject to a tax inspection for the period up to December 31st 2020, during which ANAF reclassified gift vouchers granted to employees by third parties as taxable salary income and calculated additional amounts for income tax and social contributions, can benefit from the amnesty of such additional amounts, according to a procedure recently published in the Official Gazette.
The procedure requires ANAF to prepare lists of economic agents who can benefit from the amnesty and cancel ex officio the additional amounts determined by tax assessment decisions. Taxpayers can also submit a request to ANAF for the cancellation of the additional amounts determined by the tax assessment decision. If the amounts have already been paid, the taxpayer must submit a request for the refund of the additional amounts. These requests are presented as annexes to Order 906/2023.
Other legislative changes in the field of taxation and tax administration for individuals
Tax administration for individuals with high net worth
Order No. 920/2023 regarding individuals with high net worth, published in the Official Gazette No. 585 on June 28th 2023, establishes that an individual with high net worth is a tax resident of Romania who owns assets, both in Romania and abroad, estimated to be valued at more than 25 million euros, the equivalent in lei, calculated at the average exchange rate of the euro from the previous year of asset estimation, determined by the National Bank of Romania (BNR), based on data held/obtained by ANAF, in accordance with legal provisions.
Net worth includes the following assets: owned immovable properties, owned movable properties and owned financial assets.
Individuals with high net worth are part of the Group of Individuals with High Net Worth. The extended group of individuals with high net worth is constituted by the group of individuals with high net worth and the spouses and relatives/in-laws up to the second degree of these individuals. ANAF shall notify individuals about their inclusion in the Group of Individuals with High Net Worth.
In order to increase voluntary compliance of individuals with high net worth in correctly fulfilling their tax obligations, ANAF shall implement alternative tax treatments, such as providing guidance to individuals and issuing compliance notices, where tax risks are identified, before commencing personal tax inspections.
Individuals with high net worth should pay attention to receiving the notification that will inform them about their inclusion in the Group of Individuals with High Net Worth, which will also include the method used by ANAF to estimate their net worth.
Income tax exemption for IT employees
Although there is discussion about abandoning this tax benefit, along with the renunciation or adjustment of tax benefits for the construction sector, agriculture, and the food industry, for now, starting from June 1st 2023, the exemption for the IT sector has been modified to extend its application to local public institutions as well.
Thus, Order 1415/20463/3964/967/2023 has been published, which regulates the classification of job positions in the computer programming activity. The Order mentions the list of departments to which the job position benefiting from the income tax exemption must belong:
- Information and communication technology,
- Artificial intelligence and emerging digital technologies,
- Electronic tax administration,
- Databases,
- E-governance services,
- Digital transformation.
Therefore, we have a series of changes regarding the taxation of individuals, and there are discussions in the public space about substantive changes that may be introduced in the coming period, ranging from the repeal or restriction of certain benefits to a possible abandonment of the flat tax rate for personal income. These changes can have a significant impact on businesses and individuals, in terms of tax compliance and the impact on net income, so they should be closely monitored.
News about Tax & Training
As we have accustomed you, we are pleased to keep you updated on our latest projects.
The selection for July is a professional training project that we are developing for one of our clients, an accounting services company in Cluj. The program includes monthly sessions on relevant tax topics and legislative updates, support in evaluating team members and creating professional development objectives for the upcoming period. It is a project that will run throughout the year 2023 and that we aim to refine and replicate it in the following years.
Furthermore, we are pleased to announce that our company has become a member of Romanian Business Leaders, „the voice and vehicle of action for business leaders to build a Romania where future generations would want to live”, and we are excited to contribute to this ambitious and motivating objective.
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This information does not constitute tax advice. NOA Tax & Training SRL does not undertake responsibility for the application of tax provisions to the specific cases of each individual taxpayer. This information is not provided with the intention of aiding the illegal avoidance or reduction of taxes, fees or related obligations imposed by authorities.
For personalized tax consultancy or to request a training offer, you can contact us via email at nadia.oanea@taxandtraining.com or by phone at 0749239343.
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