The takeaway
Order of the Ministry of Finance no. 1.178/2023 approved the procedure regarding the issuance by the Ministry of Finance of the anticipated individual tax solutions for the regulation of the tax treatment applicable to a future tax situation in relation to taxes, fees and mandatory social contributions regulated by the Fiscal Code.
In detail
Taxpayers can submit a request that the Ministry of Finance issue an anticipated individual tax solution (SFIA/tax solution) at least 90 days before the date on which they intend to carry out the proposed transactions. The application, documentation and any other subsequent communications have to be transmitted exclusively by electronic means of remote transmission.
The request will contain the taxpayer’s proposal regarding the tax treatment applicable exclusively to the transactions to be carried out and the arguments supporting this proposal.
The request must be accompanied by the documentation for issuing the tax solution and contain the following information: the identification data of the requesting taxpayer/payer and, if applicable, their legal representative; an overview or summary of the proposed transactions; confirmation that the request for the issuance of the tax solution falls within one of the categories provided for by BEPS Action 5 / DAC 3 and the complete provision of information regarding the affiliated entities; abbreviations and definitions of the terms used; the detailed presentation of relevant information in relation to the proposed transactions; the presentation of the relevant transactions partially or fully completed prior to submitting the application for issuing the tax solution; additional information related to the proposed transactions and the taxpayer’s/payer’s declaration confirming the correctness of the information presented.
Prior to submitting the application for issuing the SFIA, the taxpayer can request that the Ministry of Finance to organise a preliminary discussion. The request for the organisation of the preliminary discussion is sent exclusively by electronic means of remote transmission and must contain identification data on the taxpayer and the legal representative and a brief presentation of the subject of the discussion. The preliminary discussion is no longer organised if, before the date set for it, the taxpayer submits an application for issuing the SFIA.
The Ministry of Finance will communicate to the taxpayer the conditions under which the preliminary discussion is organised, within five working days as of the date of receipt of the request. The preliminary discussion and the Ministry of Finance representatives’ statements or comments do not generate the approval/rejection of the application for issuing the SFIA.
Within 15 days as of the date of registration of the application for the issuance of the SFIA, the Ministry of Finance performs a preliminary analysis aimed at verifying compliance with the formal conditions and confirming the collection of the fee for the issuance of the SFIA.
The application for issuing the SFIA is not considered in the following situations:
- The application or documentation is not transmitted by remote means.
- The application or documentation does not contain all the elements mentioned in this Order.
- The application or documentation is illegible, contains discordant data or information or is unrelated to the applicant taxpayer.
- The legal basis on which the requested SFIA was proposed changes within the period after the submission of the request provided for conducting the preliminary analysis.
- The application for issuing the SFIA concerns several tax obligations.
- The fee for issuing the SFIA was not collected by the deadline provided for conducting the preliminary analysis.
If none of the above situations apply to the request, it is considered admitted to the analysis stage for resolution.
Prior to issuing the SFIA, the competent fiscal body communicates the draft tax solution to the taxpayer to formulate a point of view. The taxpayer then communicates within the legal term the point of view regarding the draft tax solution or notifies the competent fiscal body regarding the waiver of this right.
Both the SFIA and its rejection process are approved by order of the Minister of Finance and contain all the elements mentioned in Order no. 1178/2023.
If the taxpayer does not agree with the issued SFIA, they can notify the Ministry of Finance within 30 days as of the communication. The SFIA for which the taxpayer/payer has submitted a notification does not produce any legal effect.
The SFIA is enforceable against the tax authority, except for in the following situations that are established after issuance:
- The conditions considered when issuing the tax solution are not respected, including the situation where elements or stages of the proposed transactions were not carried out in accordance with the description presented in the application and the attached documentation.
- One or more critical presumptions have not been met.
- The description of the proposed transactions was incomplete or incorrect.
- The tax solution issued contravenes the regulations of the treaties, the European or national legislation, including the situation where the regulations applicable to the factual situation have been modified since the date of entry into force of the new regulations.
The taxpayer/payer is obliged to notify the competent fiscal body, in writing and as soon as they become aware of it, regarding any change in the data, information and circumstances that were the basis for issuing the tax solution.
The order of the Minister of Finance for the approval of the SFIA is revoked if, after its issuance, the fiscal body becomes aware of the following situations:
- Any of the previously mentioned situations that attract the indefeasibility of the SFIA.
- The result of the transactions was changed as a result of factors and/or events directly or indirectly attributable to the applicant, with the aim being tax avoidance or fraud.
- A tax, administrative or judicial debt administration procedure has been completed by issuing an administrative act or final judgement (including a decision of the Court of Justice of the European Union), which partially or fully concerns the transactions and/or operations or which affects the basis for issuing the anticipated individual taxes solution. and
- If the persons and entities involved in the transactions described in the request, documentation or subsequent clarifications provided by the taxpayer/payer are controlled by designated persons.
Source: [MF Order no. 1178/2023 approved of the Procedure regarding the issuance of the anticipated individual tax solution, published in the Official Gazette no. 263 dated 30 March 2023]