The present order establishes the criteria based on which is determined the registration for VAT purposes of companies that are established under Law no. 31/1990 regarding the companies, with subsequent amendments and completions, which are subjected to registration with the Trade Registry and which require registration for VAT purposes either when set-up or if they do not exceed during the fiscal year the exemption threshold but which require to be registered for VAT purposes.
Thus, starting with the effective date of the present order, the newly established companies will not be able to be automatically registered only by checking under the application for registration submitted to the Trade Register the option regarding the payment of VAT.
Thus, companies that want to be registered for VAT purposes must submit to the competent tax authorities an annex to the deed of undertakings (010), compliant with the model established by the present order. Based on this Annex, the tax authorities will assess the intention and ability of the respective companies to perform economic activities involving taxable operations and/or exempted from VAT with right of deduction, as well as operations for which the place of delivery/ performance is considered to be abroad if tax would be deductible in situations when these operations would be carried out in Romania.
In addition, taxable persons applying to be registered for VAT purposes since their foundation must state on their responsibility that by the date of notification of the decision of approval or rejection of registration for VAT purposes will not carry out economic activities in Romania consisting in taxable operations from the VAT point of view.
This means that a newly established company which wants to be established as a VAT payer can not carry out economic activities till after 15 business days from the foundation, when it obtains or not the VAT code.
Assessment of application for registration will be based on the following criteria:
• the taxpayer is not in the position to exclusively carry out its activity to third parties but it states that activity it performs its activity at the registered office and / or secondary locations, this information will be evaluated within 3 working days from the date of the application request based on the ascertaining certificate issued by the Trade Register which shows that the taxpayer meets the operating conditions stipulated by the specific legislation in healthcare, veterinary, environmental protection and labor protection fields, for activities specified in the customized statement. In case of failure to meet the criterion, it will be issued a decision of rejection of the application, without stepping to the the next stages;
• strictly for companies requesting registration for VAT after registration with the Trade Registry (according to. art. 153 par. 1 letter c) of the Fiscal Code) neither the administrators and/or shareholders of the taxable persons and nor the taxable person itself does not have recorded under the criminal fiscal record crimes and/or other deeds as stipulated under art. 2 para (2) of GEO no. 75/2001 on the organization and functioning of the criminal fiscal record (it relates to inveigling the joint liability with the debtor declared bankrupt or insolvent, established by decision issued by the competent fiscal body settled as final and it also relates to fiscal inactivity).This criterion is also checked within 3 working days from the date of submission of the application for registration for VAT purposes. The shareholders that are checked are only the ones who hold at least 15% of the share capital of the company;
• the manner of acquisition / ownership of the space which is used as headquarters/secondary headquarters;
• shareholders or administrators have been or not shareholders, respectively administrators of companies that went into liquidation or for which insolvency proceedings began or which are in temporarily inactivity registered with the Trade Registry inactive
• the shareholders and the administrators are EU or non EU citizens.
For each of the criterion listed in Annex 2 will be given a score according to the instructions provided in the order. If it scores less than 45 points, the application request for the registration for VAT purposes will be rejected by the tax authorities. If it scores 45 or more points, then the application request for registration for VAT purposes will be approved by the tax organs.
The decision for approving or rejecting the registration for VAT purposes will be issued within maximum 15 working days from date of submission of the deed of undertakings and it will be communicated to the applicant according to art. 44 of the Fiscal Procedure Code.
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