Dividend tax, tax on income from the transfer of use of goods and social health insurance contributions related to agricultural products and monies paid by agricultural companies to founding members and other persons who transfer the right to use the land
DREPTUL AFACERILOR/ASPECTE DE DREPT PROCESUAL
Abstract
The advantages in money and in kind granted to the founding members of the agricultural company are limited to the provisions of Article 7 paragraph (1) point 12 of Law no. 571/2003, given that the founding members hold shares in the plaintiff company, in accordance with the provisions of Article 25 of Law no. 36/1991. Thus, any distribution in cash or in kind, made by the agricultural company, considering the quality of founding members, must be treated as a dividend payment and taxed as such, in accordance with the provisions of Article 67 paragraph (1) of Law no. 571/2003 (the old Fiscal Code), respectively with the provisions of Article 7 paragraph (1) point 11 (ii) of Law no. 227/2015 (the new Fiscal Code).
Agricultural products and monies paid by agricultural companies to other persons, who transfer the right to use the land without concluding a written contract and without registering the right to use the land in the share capital of the agricultural company, have not the nature of dividends but of consideration for the transfer of the use of agricultural lands. These advantages follow the fiscal regime regulated by the provisions of Article 62 paragraph (21) of Law no. 571/2003, and the fiscal regime regulated by the provisions of Article 84 paragraph 4 of Law no. 227/2015, regarding the income obtained from the lease of agricultural goods from the personal patrimony.
The legal norms that regulate the written form of the lease contract [Article 2, Article 5 paragraph (1) and Article 6 paragraph (4) of Law no. 16/1994, respectively Article 1838 of Law no. 287/2009 on the Civil Code] are not relevant in point of the obligations to pay taxes and related contributions, and the parties to a legal relation may not invoke their own fault in non-compliance with the formal conditions stipulated by law, with the consequence of evading tax obligations. Both the old Fiscal Code and the new Fiscal Code stipulate in Article 62 paragraph (21), respectively to Article 84 paragraph (4), that the gross income is established on the basis of the legal relationship/contract concluded, being obvious that not only the written form of the lease deed determines payment obligations on the landowner but also the legal relationship not included in a writ.
The obligation to calculate, withhold and transfer to the budget the tax and mandatory contributions rests with the income payer, in this case the agricultural company that pays monies and agricultural products to persons who brought land in the operation of the association, according to Article 62 paragraph (24), Article 29624 paragraph (42) and paragraph (10) of Law no. 571/2003 (the old Fiscal Code), respectively Article 84 paragraph (8), Article 173 paragraph (2), Article 174 paragraph (7) and (8), Article 174 paragraph (1) letter d) of Law no. 227/2015 (the new Fiscal Code).
