Issued with a delay of almost two months, the procedure for applying the tax amnesty for gift vouchers, without which the tax authorities could not actually write off taxpayers’ debts, has been published, so that companies can start to benefit from the cancellation of debts. However, the regulation leaves out companies that have applied different tax treatments for the tax classification of gift vouchers targeted by the amnesty.

ANAF order no. 906/2023 approves the procedure that allows the effective application of the tax amnesty for the reclassification of gift vouchers. We remind you that the tax amnesty was regulated by Law no. 43/2023 (applicable in theory from February 24) and operates for the reclassifications of gift vouchers granted to third parties between May 26, 2006 and December 31, 2020. The reclassifications refer to situations where the tax treatment for gift vouchers obtained by employees from persons other than employers theirs was revised by ANAF from income from other sources into income from wages and assimilated to the wages of gift vouchers, the law stating that the amnesty applies including in the situation where the gift vouchers were granted by the income payer to the employer of natural persons in order to distribute to their employees on behalf of the income payer.

Now, through the published procedure, ANAF comes up with application rules and specifically states how the debt cancellation will be done. The procedure covers both cases in which taxation decisions have been issued and communicated to taxpayers, as well as those in which decisions have been issued but not communicated. For the companies that have already paid amounts covered by the amnesty, the manner in which they will be recovered is provided.

Cancellation of payment amounts is done ex officio, and the procedure establishes specific rules for both situations in practice:

1. when the tax decisions have been issued and communicated to taxpayers – the documents are analyzed by the inspectors who issued them to see if they are covered by the tax amnesty – in whole or in part, and subsequently decisions are issued to cancel the tax obligations (main and accessories) and is communicated to the concerned companies. If the tax authorities do not perform this analysis ex officio, taxpayers can directly submit cancellation requests (the model of the document is provided by the ANAF Order);
2. when the tax decisions have been issued, but not communicated – the administrative documents will no longer be communicated to the taxpayers, and the respective amounts will not be entered in the tax records of the companies.

If the additional amounts determined by the taxation decisions have already been paid by the taxpayers, they can submit an application to obtain the reimbursement of the amounts – the application model is also included in the procedure published by ANAF. It is very important to remember that the refund is not made ex officio, but must be requested by the taxpayers.

It’s also worth noting that any ongoing checks on gift card rescheduling covered by the amnesty will be halted.

However, the Order published by ANAF leaves out the companies that applied to the gift vouchers covered by the amnesty other tax treatments than those specifically provided by the regulations.

Thus, companies that, when granting gift vouchers during the amnesty period (May 26, 2006 – December 31, 2020), opted for a different tax classification than “income from other sources” will not benefit from the debt cancellation mechanism.

This category includes, for example, companies that treated gift vouchers as prize revenue, as well as those that did not expressly grant the benefit of gift vouchers, but chose other forms of incentivizing third-party employees (such as vouchers valid in online stores). In other words, companies that had such incomes reclassified by ANAF inspectors as salary incomes will not benefit from the amnesty, but will have to pay the amounts established by the taxation decisions issued by the tax authorities, and this type of situations can still be inspected by ANAF and reclassified from a fiscal point of view.

Currently, the tax regime for gift vouchers is much stricter and leaves no room for any kind of interpretation or artifice, after the Government established through an emergency ordinance from the end of 2021 (O.U.G. no. 130/2021) that these vouchers can be granted by companies only to their own employees, there is no longer any way to offer them to employees of third parties.

Article published in TaxMagazine