Emergency Ordinance no.138/2024 on amending and supplementing certain normative acts in the fiscal-budgetary field, as well as for regulating other measures

On December 5, 2024, was published in the Official Gazette no. 1222 the Emergency Ordinance no. 138/2024, which amends and supplements certain normative acts in the fiscal-budgetary field, as well as regulating other measures.

Among the most notable new provisions introduced by this Emergency Ordinance, we mention:

e-Invoice

• Invoices issued for operations carried out based on public/sectoral procurement contracts, concession contracts for works/services, and public procurement contracts in the fields of defense and security should contain the corresponding CPV code from public acquisitions nomenclature.
• Starting 1^st of January 2025, there is an obligation to communicate via RO e-Invoice platform the simplified invoices. Fiscal receipts issued through fiscal cash machines that meet the conditions of a simplified invoice are exempt from this obligation.
• It is clarified that in case of B2B transactions, only invoices issued between Romanian established entities for supplies of goods/services with the place of supply in Romania fall withing the Ro e-Invoice scope.
• It is clarified that invoices for intracommunity supplies of goods will be exempt from being communicated through RO e-Invoice system, in case the beneficiary from Romania uses a VAT registration code from another member state.
• In the context of the obligation to communicate invoices through RO e-Invoice platform for B2C transactions, it is clarified that for invoices issued to natural persons that do not provide CNP the identification code of the beneficiary will be completed with a code consisting of 13 of zero.
• The provisions regarding the use of RO e-Invoice system for invoices issued for holiday vouchers are repealed, considering that, starting from January 1, 2025, for all invoices issued in the B2C relationship, intervenes the obligation to be communicated via RO e-Invoice.

e-VAT

• The obligation of taxpayers to communicate to the tax authorities the result of the checks performed on the differences communicated through the "Notification of RO e-VAT compliance" is postponed until July 1,2025.
• It is mentioned that taxable persons that make acquisitions for which deducted VAT, in order to achieve investment objectives within the framework of public or social interest programs, financed from public funds, which, are handed over to the beneficiary of the objective free of charge based on protocol, must issue a self-invoice according to art. 319 para. (8) of the Fiscal Code.

e-Transport

• The application of sanctions is postponed until March 31, 2025 for taxpayers who hold the status of authorized economic operator according to art. 38 of Regulation (EU) no. 952/2013 establishing the Customs Code of the Union, valid on the date of the international transport of goods.

Separately, several changes and clarifications to the Fiscal Code have been introduced:

VAT

• Simplified invoices will also include the VAT registration code or the fiscal identification code of the beneficiary if they are a taxable person or a non-taxable legal entity.
• In the case of transactions subject to simplification measures according to art. 331 of the Fiscal Code, if the VAT taxable base is adjusted according to art. 287 letters a) - c) and e-) of the Fiscal Code, and the supplier does not issue a correction invoice according to art. 330 paragraph (2) of the Fiscal Code, the beneficiary must issue a self-invoice by the 15th of the month following the one in which the event that generated the adjustment occurred.

Additional turnover tax

• Clarifications are brought with respect of taxpayers subject to the additional turnover tax for credit institutions, as well as the legal entities conducting activities in the oil and natural gas sectors, which are exempt from the application of the minimum turnover tax during the period the additional turnover tax is applied.
• In the case of the fiscal group, the provisions regarding the additional turnover tax for credit institutions and for legal entities conducting activities in the oil and natural gas sectors, are applied accordingly by each member, depending on their individual situation.

Excise duties

• An entity that produces natural gas for its own use is regarded as both a producer and a final consumer. In such a case the deadline for excise duty payment is the 25th of the month following the month in which the invoicing to the final consumer or self-consumption occurred;
• Starting with February 1, 2025 (1) registered consignees who present high tax risk and (2) economic operators who are registered with the competent authority for the distribution and wholesale marketing without storage of alcoholic beverages, processed tobacco and energy products - gasoline, diesel, lamp oil, liquefied petroleum gas and biofuels and who wish to market excisable products that are in a tax warehouse,  will have the following obligations:
  • To constitute guarantees of 120% of the equivalent value of the excise duties related to the quantity of excise products that they intend to receive in the case of registered consignees, respectively to sell it in the case of tax warehouses. In the event that there are outstanding tax liabilities administered by A.N.A.F. with more than 5 days compared to the legal payment term, the guarantee extends to them;
  • To submit a declaration on their own responsibility regarding the quantity of excise products. The model of the declaration and the method of declaration will be established by order of the President of the National Agency for Fiscal Administration;
  • To notify the competent authority, at least 3 calendar days before the exhaustion of the quantity of excise products entered in the declaration on their own responsibility.                                                         If the economic operators do not comply with the above, at the proposal of the control bodies, the competent authority shall revoke the document certifying the registration with the competent authority within a maximum of 3 calendar days from the date of receipt of the revocation proposal. Also, a fine from lei 20,000 to 100,000 will be applied, as well as the seizure of the products, and if they were sold, the seizure of the amounts resulting from this sale.
• The criteria for determining the registered consignees who present high fiscal risk will be established by joint order of the President of the National Agency for Fiscal Administration and the President of the Romanian Customs Authority;
• If the competent authority finds that during 36 consecutive months from the date of submission of the first declaration on their own responsibility, the economic operator has not registered outstanding tax liabilities to the general consolidated budget, of the nature of those administered by the National Agency for Fiscal Administration, the economic operator shall be considered to no longer present a high fiscal risk.

Personal income tax and social charges

• Clarifications are brought regarding the tax regime applicable to rental income which provided for the obligation of withholding tax at source starting from January 1, 2024 (e.g., in the case of rental advance payments made in 2023 for 2024 / guarantees covering rent / rent paid exclusively in kind – the obligation to declare and pay income tax in such cases falls on the income beneficiaries / the obligation to issue a document certifying the amount of tax withheld by the payers).
• In the specific case of the aforementioned rental advance payments, clarifications are brought regarding the applicable annual thresholds for the health fund contribution.
• Amendments / clarifications are brought regarding the tax regime applicable to certain income from the transfer of real estate properties from personal assets - e.g., the transfer of dismemberments of property rights under a suspensive condition / bare ownership / specific situation provided by Law 7/1996 / taxable value.
• Income from pensions obtained from abroad, other than privately managed, voluntary, or occupational pensions similar to the rights provided by Romanian legislation, are subject to taxation by applying a 10% tax rate on the gross annual income reduced by the non-taxable monthly amount provided in the Fiscal Code, calculated on an annual basis. The same provisions apply to income from privately managed, voluntary, or occupational pensions obtained from abroad, similar to the rights regulated by Law no. 411/2004, Law no. 204/2006, and Law no. 1/2020, in situations where taxpayers do not have documents regarding the net contributions made to the respective funds.

For more information, the EY team is at your disposal.