Thousands of companies that are not “at home” are declared fiscal inactive, even if they are with payments

Thousands of companies that are not “at home” are declared fiscal inactive, even if they are up to date with all payments to the state, warn the accountants, listing some concrete examples.

Thousands of companies are declared fiscal inactive, even if they are up to date with all payments to the state

CC Tax Advisory draws attention to a wave of decisions to declare fiscal inactivity for hundreds, potential thousands of taxpayers, on the grounds that the anti-fraud bodies did not find, in the controls carried out the representatives of the companies at the social headquarters, without the controlled companies had debts to the state at the time of control.

Specifically, citing only article 92, paragraph 1, without specifying any letter, of the Fiscal Procedure Code, ANAF announces by SPV the taxpayer that from the date of communication of the decision has been declared fiscal inactive.

The problem is that the respective article imagines a number of 7 situations in which the taxpayer can be declared inactive fiscal. These situations are:

a) does not fulfill, during a calendar semester, no declarative obligation provided by law;

b) it is stolen to the controls carried out by the central fiscal body by declaring some data for identifying the fiscal domicile that do not allow the fiscal body to identify it;

c) the central fiscal body found that it does not work at the declared fiscal domicile;

d) the temporary inactivity registered at the Trade Register;

e) the operating time of the company is expired;

f) the company has no more statutory bodies;

g) the duration of holding the space for the registered office is expired.

CC Tax shows that fiscal inactivity, from the analysis of art. 92 para. (1) Fiscal procedure code that regulates a problematic fiscal behavior, has a legal and economic role. The ghost company represents only a commercial entity legally registered but with a short life and with unknown real beneficiaries, most of the times, to the fiscal bodies. However, in many of the sanctioned cases it is not about this: the companies we were talking about had a history, they were up to date with the payment of taxes, they had governing bodies known to the authorities.

Fiscal inactivity decisions become problematic for taxpayers in at least two situations:

1. does not carry out commercial activity at the registered office. Example: a retail shop that performs commercial activity in another place.

2. It performs the activity in third parties. As an example, CC Tax Advisory indicates several categories of small taxpayers affected by this abusive interpretation of ANAF:

• An installer, who has a SRL with the registered office, but provides the activity to the clients, through the specificity of his work.

• An electrician, who has a SRL with the registered office, but performs the activity to the clients, through the specificity of his work.

• A small freight transporter – a TIR head, which has its registered office at an address, but by the nature of its work cannot be present at the registered office and to carry out its activity in CAEN.

“The official procedure says that if the fiscal body does not find the taxpayer, then invites it to the ANAF headquarters. In Bucharest, ANAF did not. Issued directly decisions of fiscal inactivity. Other tax administrations in the country have chosen to comply with the fiscal procedure. The huge problem with this approach is that from the moment it is declared fiscal inactive, the controller instantly loses the VAT code. This does not mean, however, that it does not collect VAT anymore, but only that it can no longer deduce it. So, the Romanian state, at the same time, sanctions the company, but still trusts it to collect VAT. Now, the accounting experts, who had only 7 days to make the semester report for income companies of over 1 million euros, because ANAF has published the form with great delay, must stop everything and write appeals to fiscal inactivity decisions. Because the term of appeal is a very small one, and if it does not challenge the decision, the taxpayers remain at a cost of 21%. Nobody disputes the need to combat evasion, but here we are talking about companies that were up to date with all the payments to the state. It is an additional example that a harmonization between the Fiscal Procedure Code and the rest of the laws that regulate the economic activity must be done. Because you cannot allow an economic operator to have activity in third parties and then to declare it inactive because you have not found it at the registered office, given that the trade register knows exactly which companies have activity in third parties, what companies have work points and what companies have declared activity at the registered office. Moreover, Law 102/2020 eliminated the obligation to have only one company registered at a registered office, so the taxpayers who have contracted hosting services the registered office did not violate any law ”, said Cornelia Năstase, CC CC Tax Advisory.