Romania: New reporting obligations for digital platform operators (DAC7)
Government Ordinance no. 16/2023
New reporting obligations
Government Ordinance no. 16/2023, transposing Council Directive (EU) 2021/514 (DAC7) into Romanian law, was published in the official journal no. 86 of 31 January 2023.
The DAC7 directive introduces a new set of reporting requirements for digital platform operators to disclose to their tax authorities certain information about the income obtained by sellers operating on such platforms. After this information is reported to the tax authorities, it will be subject to the automatic exchange of information between member states, in an effort to quickly identify any attempt to avoid reporting the income derived through digital platforms.
Who needs to report?
Digital platform operators are entities that contract with sellers to make available all or part of a platform to such sellers, allowing sellers to be connected to other users for the purpose of carrying out a relevant activity. A platform includes any software, including a website or a part thereof and applications, including mobile applications, accessible by users and allowing sellers to be connected to other users. The term platform does not include software that without any further intervention in carrying out a relevant activity exclusively allows any of the following:
- Processing of payments in relation to a relevant activity
- Listing or advertising of a relevant activity by users
- Redirecting or transferring of users to a platform
A reporting platform operator means any platform operator that:
- Is resident for tax purposes or is incorporated in Romania or another member state, or has its place of effective management or a permanent establishment in Romania or another member state
- Facilitates the carrying out of a relevant activity by reportable sellers or a relevant activity involving the rental of immovable property located in Romania or another member state
Thus, a non-EU digital platform operator (foreign platform operator) may be required to register and report information under the DAC7 rules. The platform operator has the option to choose one member state in which to register, and after the platform operator registers in one member state, the relevant tax authorities in that member state will notify the registration number to all the relevant tax authorities in the other member states.
The administrative information for the registration of platform operators will be made available within 90 days of the publication of the ordinance.
The relevant activities mean an activity carried out for consideration, including:
- Rental of immovable property, including both residential and commercial property, as well as any other immovable property and parking spaces
- Personal service
- Sale of goods
- Rental of any mode of transport
Platform operators are required to collect and report information about reportable sellers’ activities. Reportable sellers mean platform users, either individuals or entities, that are registered at any moment during the reportable period on the platform and carry out a relevant activity. Reportable sellers are only the active ones (any seller that either provides a relevant activity during the reportable period or is paid or credited consideration in connection with a relevant activity during the reportable period), resident in Romania or another member state or those which have carried out a relevant activity involving the rental of immovable property located in Romania or another member state.
Given the wide use of digital platforms, the reporting requirement applies regardless of the legal nature of the seller. There are, however, certain categories of excluded sellers:
- Governmental entities
- Entities the stock of which is regularly traded on an established securities market or a related entity of an entity the stock of which is regularly traded on an established securities market
- Entities for which the platform operator facilitated more than 2000 relevant activities by means of the rental of immovable property during the reporting period
- Entities for which the platform operator facilitated less than 30 relevant activities by means of the sale of goods and for which the total amount of consideration paid or credited did not exceed the equivalent in RON of 2000 EUR during the reporting period
A reporting platform operator must report to the tax authority the necessary information annually, no later than 31 January of the year following the year in which the seller is identified as a reportable seller on the platform. The first reporting deadline will be 31 January 2024 and will include information related to 2023.
Simplified reporting measures
When there is more than one reporting platform operator, any of those reporting platform operators will be exempt from reporting the information in Romania if it has proof that the same information has been reported by another reporting platform operator.
If a reporting platform operator resident in Romania or another member state is required to report in multiple member states, an option can be exercised to report in only one member state.
Penalties for non-compliance
The ordinance introduces a set of non-compliance penalties, as well as other restrictions which could negatively impact the activity of the entities involved—both platform operators and reportable sellers. The ordinance also includes certain requirements and fines for non-compliance for network and electronic service providers.
The ordinance transposes the provisions of the DAC7 directive with minimal changes. There are certain issues that could be further clarified by the tax authority, especially where certain terms have been defined broadly, such as the definition of platform operators. For example, it is not clear whether cloud hosting services (allowing sellers to be connected with users in exchange for a consideration) would fall under the definition of a platform operator.
Read a February 2023 report prepared by the KPMG member firm in Romania
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