Changes introduced to the Customs Code: GEO no. 85/2022

The takeaway 

The Government of Romania has adopted a series of amendments through Government Emergency Ordinance no. 85/2022 (EOG no. 85/2022).

For the purposes of revitalising the economy and avoiding insolvency procedures, the mechanism for the restructuring of budget obligations, as introduced by Government Ordinance no. 6/2019, has been modified to include the option of requesting the restructuring of the main budgetary obligations outstanding as at 31 December 2021. Anyone interested in doing so can notify the authorities by January 2023 of their intention to benefit from the mechanism. Requests for restructuring have to be submitted by July 2023.

The term for applying the reverse charge mechanism, as provided for in art. 331 of the Fiscal Code, has been extended to the end of 2026 for eight types of operations carried out between taxable persons registered for VAT purposes in Romania. This term expires on 30 June 2022.

The introduction into/or removal from the country, by evading customs control, of goods or merchandise that must be placed under a customs regime is regulated as a contraband offence, including situations where the quantitative limits provided for in art. 452 of the Fiscal Code are exceeded in the case of excise goods subject to marking.

The possession by any person or the sale on the territory of Romania of excise products subject to marking, except for those held in the tax warehouse, without being marked or improperly marked or with false markings, over certain limits provided by GEO no. 85/2022 are now criminal offences.

As of 1 July 2022, the reduced excise duty will be applied (as provided for under points 3.1.1, 3.1.2, 3.1.3 or 3.2.1 of Annex 1 of the Fiscal Code) for any type of fermented, non-carbonated or sparkling drinks with alcohol concentration below the maximum threshold of 8.5% vol.

We present the most important measures below.

In detail

1. Extension of the deadline for restructuring of budgetary fiscal obligations, as provided for in Government Ordinance no. 6/2019 regarding the establishment of fiscal facilities (OG no. 6/2019)

The main budgetary obligations outstanding as at 31 December 2021 and unpaid by the date of issuance of the fiscal attestation certificate, as well as the ancillary budgetary obligations, may be restructured. According to the previous regulation (OG no. 6/2019, amended by Law no. 112/2022) budget obligations outstanding on 31 December 2020 could be restructured.

The main budgetary obligations outstanding as at 31 December 2021 and the budgetary obligations declared by the debtor or established by the competent fiscal body by decision after 1 January 2022, related to fiscal periods up to 31 December 2021, are considered. They may also be restructured, and the main and accessory budgetary obligations established by bodies other than the fiscal bodies, as well as fines of any kind, sent for recovery to the central fiscal bodies after 1 January 2022 by the date of issuance of the fiscal attestation certificate.

The main and ancillary budgetary obligations in the local fiscal body’s records that are outstanding as at 31 December 2021 and unpaid by the date of issuance of the tax certificate may also be subject to restructuring. The application procedure will be approved by decision of the deliberative authorities at the level of fiscal administrative units.

The following budgetary obligations cannot be restructured:

• Those which, on the date of issuance of the tax attestation certificate, were extinguished by compensation.
• Those established by administrative acts which, on the date of issuance of the fiscal attestation certificate, are suspended for execution under the conditions of arts. 14 or 15 of the Administrative Litigation Law no. 554/2004.
• The main and ancillary budgetary obligations that represent state aid to be recovered, those that represent European funds or national public funds, and those that represent customs duties, excise duties and value added tax administered by, with the exception of fiscal inspection and enforcement, the Romanian Customs Authority.
• Those remaining due as a result of restructuring granted pursuant to OG no. 6/2019, for which the restructuring plan failed.

The notification regarding the restructuring intention can be submitted by the debtor between 20 June 2022 and 31 January 2023, under penalty of losing the right to benefit from the restructuring of budgetary obligations. The previous notification submission period was 1 November 2020 to 30 September 2021.

The deadline for submitting a restructuring request is 31 July 2023. The previous deadline was 31 July 2022.

The requests submitted by debtors regarding the restructuring of budget obligations that are in the process of being resolved as at the date of entry into force of GEO no. 85/2022 (17 June 2022) will be settled according to the legislation in force on the date the request is submitted. Alternatively, debtors can opt for the restoration of the restructuring plan and the inclusion of budget obligations outstanding as at 31 December 2021, in which case the fiscal body will issue a new tax attestation certificate, which will include the budgetary obligations outstanding as at 31 December 2021 and unpaid on the date of its issuance.

In situations where the notification regarding the intention to restructure the budget obligations was submitted by 30 September 2021 but the request to restructure the budget obligations was not submitted prior to the entry into force of GEO no. 85/2022 on 17 June 2022, the tax authorities issue, ex officio, within 10 working days as of 17 June 2022, a new tax attestation certificate that includes the budgetary obligations outstanding as at 31 December 2021 and unpaid by the date of its issuance. Submission of a new notification after the entry into force of GEO no. 85/2022 no longer produces effects. In situations where enforcement has begun, it is suspended from the date of submission of the restructuring request.

For debtors submitting the notification regarding their intention to restructure the budget obligations after 17 June 2022 but do not submit the request for the restructuring of the budget obligations within six months as of the date of submission of the notification, enforcement begins or continues, as appropriate. Submitting a new notification within six months or after the expiration of this period no longer produces effects. In situations where the request for restructuring is submitted after the start of enforcement, it is suspended from the date of submission of the request for restructuring.

2.Application of reverse charge mechanism for eight types of operations extended to 31 December 2026 (Tax Code)

The application of the reverse charge mechanism will continue until 31 December 2026 in the case of the following operations carried out between taxable persons registered for VAT purposes in Romania (the term was due to expire on 30 June 2022):

• The supply of cereals and technical plants, including oilseeds and sugar beet, which are not in principle intended as such for final consumers.
• The transfer of transferable greenhouse gas emissions certificates.
• The supply of electricity to a merchant taxable person established in Romania.
• The transfer of green certificates.
• The supply of mobile telephones, namely devices manufactured or adapted for use in connection with an authorised network and operating on certain frequencies, whether or not they have any other use.
• Supplies of integrated circuit devices, such as microprocessors and central processing units, prior to their integration into end-user products.
• The supply of game consoles, tablet PCs and laptops.
• The delivery of natural gas to a trader, a taxable person, established in Romania.

[Source: GEO no. 85/2022 regarding the modification and completion of some normative acts in the fiscal and customs area, published in the Official Gazette no. 594 dated 17 June 2022]