Secondment from the territory of Romania for the provision of transnational services. Reclassification by the tax authority of amounts paid to employees as per diem/delegation allowance. Analysis of the well-founded case in solving the motion for suspensi

DREPTUL AFACERILOR/ASPECTE DE DREPT PROCESUAL

Abstract

The fact that the company's employees also carried out transport activities on Romanian territory, which casts doubt on the tax authority's assessment that the plaintiff's employees work exclusively on the territory of other Member States and that the tax regime applicable is that of wage income and not that of assimilated wage income, taxable only in excess of the legal ceiling, constitutes a well-founded case.

Such a circumstance could give rise to a different legal regime for the amounts paid by way of daily subsistence allowance, in accordance with the provisions of Article 9 of Law no. 16/2017 on the posting of employees in the framework of the provision of transnational services, according to which the staff of employers established on the territory of Romania, performing international transport operations, being sent to work for a limited period of time on the territory of another Member State, who do not fall within the situations referred to in Article 5 para. (2) of Law no. 16/2017 (secondment or secondment of an employee by a temporary employment agent), the provisions of Article 43 of Law no. 53/2003, republished, with subsequent amendments and additions, shall apply to them and they shall benefit from the rights provided for in Article 44 para. (2) of the same regulation.

The provisions of Article 43 of Law no. 53/2003, in conjunction with Article 44 para.2 of Law no. 53/2003, regulate the delegation allowance as a sum of money distinct from salary or transport and accommodation expenses, and which, consequently, follows the tax regime stipulated by Article 296 ind. 4 para. (1) letter m) and art. 296 ind. 15 of the old Tax Code (Law no. 571/2003), respectively art. 142 no. 227/2015), which excludes from the monthly basis of compulsory social contributions the allowances and any other sums of the same nature received by employees, during the period of delegation and secondment abroad, within the limit of 2.5 times the legal level established by Government decision for staff of public institutions, as well as those received to cover transport and accommodation expenses.