Order 2148/2020: Changes to the instructions for applying VAT exemptions
Changes to the instructions for applying VAT exemptions
On 17 July 2020, Order no. 2148/2020 on amending and supplementing the Instructions for applying the Value Added Tax exemption for the operations set out in Art. 294 para. (1) lit. a) -i), Art. 294 para. (2) and Art. 296 of the Fiscal Code (Law no. 227/2015), approved by Order of the Minister of Public Finance no. 103/2016 (“Order 2148/2020”), was published in the Official Journal of Romania no. 628.
Specifically, the Order aligns Romanian VAT legislation with both the European Regulations and Directives already in force at the date of publication of this Order, as well as with the jurisprudence of the Court of Justice of the European Union (hereinafter "CJEU") as established in various recent cases. The order brings welcome clarifications to a large number of situations often encountered in practice. These clarifications that should help taxpayers during upcoming tax audits on Value Added Tax.
The main changes made by the Order are:
Intra-community supplies of goods
- Order 2148/2020 brings clarifications in relation to the applicability of the “Quick Fixes” with respect to the VAT exemption applicable to intra-community transactions involving goods. These clarifications are in line with Council Implementing Regulation (EU) 2018/1912 of 4 December 2018 - amending Implementing Regulation (EU) No 282/2011, as well as with the guidelines mentioned by the European Commission in relation to the various practical implications that appear as a result of the application of the “Quick Fixes”. It is expressly mentioned that in situations which do not fall within the presumption provided by Art. 45a of Regulation 282/2011, the transport of goods from Romania to another Member State is justified according to the provisions of this Order.
Exports and supplies of services directly related to exports
- The Order also clarifies the application of VAT exemptions in the case of services related to the export of goods (CJEU Case C-288/16 'L.Č. IK.'), as well as in the absence of customs documents (CJEU Case C-275/18 "Milan Vinš"). In addition, amendments are introduced governing the application of the VAT exemption to the supply of goods and services for the benefit of vessels used for navigation on the high seas, as well as for the benefit of aircraft used by airlines operating for reward chiefly on international routes.
- The order makes certain changes to the definition of exporter for VAT purposes. In addition, clarifications are provided on the justification for the VAT exemption applicable to suppliers which do not / cannot have the status of exporter for customs purposes – and which are holders of an export customs declaration in which some elements are mentioned in box 44.
- Clarifications are also provided on the treatment of services carried out in Romania on movable goods purchased or imported for processing in Romania and which are subsequently transported outside the European Union.
- The deadline for submitting supporting documents for exemption from VAT has been extended from 90 days to 150 days (including for the buyer's affidavit in cases where the transport of the goods is the responsibility of the customer).
All the clarifications brought by Order 2148/2020 are important, and, with a few exceptions, all come to the aid of taxpayers in the case of disputes with the tax authorities. Although this legislation delays certain changes in national VAT law, all the clarifications mentioned above should be of interest to any taxpayer involved in interational trade (both goods and services). Therefore, if your company is engaged in such transactions, our recommendation is to analyze in detail the internal processes and procedures, in order to determine whether they are in accordance with the new legislative provisions.
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