Non-resident people that obtain taxable income from Romania have the obligation to pay the tax for these income in Romania. Next, we will present the rules regarding the tax withholding for income obtained by non-residents in Romania.

Legal provisions

According to the provisions of art. 221 from the Law 227/2015 regarding the Tax Code, non-residence that obtain taxable income in Romania have the obligation to pay tax in Romania, the withholding at source method being applied..

If the beneficiary of the income is a resident of a country with which Romania has concluded a convention for avoiding double taxation, the tax rate that is applicable to the taxable income obtained by that taxpayer in Romania cannot surpass the tax rate provided in the convention which is applicable over that income.

The conditions of applying the convention for avoiding double taxation are provided in art 230, par. (1) of the Fiscal Code „For applying the provisions of the convention for avoiding double taxation and of the European Union legislation, the non-resident has the obligation to present to the income payer, when paying the income, the tax residency certificate issued by the competent authority from their resident state, as well as, if necessary, an affidavit in which the fulfilment of the beneficiary condition in the situation of applying the legislation of the European Union is indicated”.

Further, in par. (2) it is noted that in case in which a tax residence certificate is not presented to the income payer until the moment the payment is done, the income obtained by the non-resident shall be withhold according to the domestic regulations in Romania, and at the moment of presenting the tax residence certificate the provisions of the convention for avoiding double taxation shall be applied, and the withheld tax shall be adjusted in the legal limitation period.

This regularization measure can only be applied if the tax residence certificate sent by the beneficiary mentions that it has tax residency in the contracting state with which the convention for avoiding double taxation is concluded for the entire period in which the income was achieved in Romania (period in which the beneficiary from Romania made payments).

We should also note the provisions of para. (2), according to which „the tax residence certificate presented during the year for which the payments are made is also valid in the first 60 calendar days of the next year, which the exception of the case in which the residence conditions are changed”.

Regarding the obligation of the payer to calculate, withhold, declare and pay to the state budget the tax owed by non-residents, in the situation in which hey are not withholding the tax from the income paid to the beneficiary but form own founds, according to art. 25, para. (4), letter 1) “expenditures with the tax not withheld at source on behalf of the natural and legal non-resident persons, for the income obtained in Romania“, represent non-deductible expenditures.

Practical aspects

There are a lot of cases where, in the contracts concluded between the legal persons from Romania and non-residents for the services provided by them and the related income obtained in Romania, the fact that the amounts from the contract represent the net amounts it is specified, without it being subject to withholding of any kind and that the beneficiary of the services is responsible with the payment of any duties and taxes.

We will take as an example the case of a company from Romania (RoCo) that concluded with a company resident in Holland (NlCo) a commission contract, and within the contract there is a provision of payment of the net amount provided in the contract, following the model mentioned above.

As a general principle, in the case in which a non-resident obtains income from commissions from Romania, according to the Tax Code, the tax owed by the non-resident is calculated, withheld and paid to the state budget by the income payers (in this case RoCo) by applying the 16% rate over the gross income.

Nonetheless, taking in consideration the fact that between Romania and Holland there is a Convention for avoiding double taxation (CEDI), the more favourable CEDI provisions according to which the commission income obtained by NlCo in Romania shall be taxable in Holland can be applied. These provisions can be applied only if at the moment in which the payment is done, RoCo has the tax residence certificate issued by the competent authority from Holland for NlCo.

However, taking into consideration the provisions from the contract according to which the tax is borne by RoCO for the income obtained in Romania by NlCo, the Tax Code specifically mentions the fact that in these situations the more favourable provisions of CEDI are not applicable, and this income is taxable in Romania according to the provisions of the Tax Code, and the expenditures registered by the RoCo in this scenario are non-deductible.

Also, taking into consideration the fact that the amount paid by the RoCo to NlCo represents the net value of the income obtained from commissions by NlCo Romania, RoCo shall be proceed to the taxation by the VAT calculation method for this income.

In conclusion, when residents of Romania carry out transactions with non-resident persons, they should give careful consideration to the contractual provisions regarding the tax withheld at source for the income obtained in Romania, they should analyse both the provisions of the local tax legislation as well as the provisions of the convention for avoiding double taxation for establishing the tax and finally to ensure that at the moment of the payment they have the beneficiary’s income tax residence certificate.
Articol published first on Avocatnet.ro.