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Unitary procedure concerning the incomes’ taxation paid in the civil contracts

In the Official Gazette of Romania, Part I, no. 129 dated the 22nd of February 2012 was published the Minister of Finances’ Order no. 247/2012 concerning the unitary procedure for applying the provisions of the article no. 52 of the Law no. 571 /2003 concerning the Fiscal Code.

The order establishes a unitary procedure for applying the provisions of the article no. 52 of Fiscal Code concerning the incomes’ taxation paid under the civil contracts concluded according to the new Civil Code, in written form, in order to tax. The precisions were necessary because beginning with the 1st of October 2011 the provisions of the Commercial Code and of the Law 178/1934 were abolished for the regulation of the consignment contract, legislative acts that were containing articles on commission contracts, commercial mandate and the contract of consignment.

The incomes’ taxation achieved by natural persons who operate independent and liberal professions

According to the clarifications of the new legislative act, the natural persons who operate independent activity as a self-employed persons, individual enterprises and family businesses, also the natural persons who achieve incomes from liberal services, individually or in a form of association, have the obligation, during the year, to pay anticipated taxes as a tax established by the fiscal body, based on annual estimated income or net income of the previous year excepting the contributors who achieve incomes for which the anticipated payments are established by withholding. The payers of such incomes have no obligations concerning calculating, withholding and transferring the tax representing the anticipated payment in the annual tax account due by the beneficiaries of income.

Incomes’ taxation achieved under the article 52 of Fiscal Code

Until the 1st of October 2011, the incomes achieved by natural persons from activities carried out under commission contracts, commercial mandate, commercial contracts regulated by the Commercial Code, respectively the consignment contract regulated by the Law no. 178/1934 for the regulation of consignment contract are subject to taxation according to the provisions of the article 52 paragraph 1letter b) and c) of the Fiscal Code into force at that time. Income taxpayers have the obligation to calculate, withhold and transfer the tax withholding under the article 52 paragraph (1) letter b) of the Fiscal Code into force at the time of publication in the Official Gazette of Romania, of the new order for incomes paid to the beneficiaries, under the following types of contracts: commission contracts, commercial mandate and consignment; qualified as civil contracts after the 1st of October 2011, the same for the agent contract; civil contracts/civil conventions that both before and after entering into force of the Civil Code have the same legal nature. The incomes payers stipulated in the article 52 paragraph (1) letter a) and c) of the Fiscal Code (paid incomes from intellectual property rights or from accounting and technical, judicial and extrajudicial expertise activity) have the obligation to calculate, withhold and transfer the tax representing the anticipated payments.

The incomes’ taxation achieved by disposing the use of goods

For the natural persons who develop independent business and who achieve incomes by disposing the use of goods from the business patrimony, quarterly anticipated payments established by the fiscal body according to the fiscal statement of the contributor will be paid by him according to the taxation decision. The payers of this sort of incomes don’t have obligations concerning the calculation, withhold and transfer the tax representing the anticipated payment in the annual tax account due to the income beneficiaries. In the case of natural persons, whether if they develop or not independent activities who achieve incomes by disposing the use of goods of personal patrimony, based on the contract concluded between the parties according to the Civil Code, are applicable the provisions of chapter IV of the Title III “Income Tax” of the Fiscal Code.

Other provisions

The income payers, natural or legal persons, also other entities without legal personality who pay towards associations without legal personality or legal person who apply the principle of fiscal transparency don’t have the obligation to calculate, withhold and transfer the tax representing the anticipated payment.

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Adina GANTOLEA

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