Exemption from the payment of the VAT. Expenses made with building a construction on the land owned by another person. Lack of proof of the reality of expenses made

DREPT ADMINISTRATIV ŞI FISCAL

Abstract

I. The expenses incurred with the construction on the land owned by a natural person, construction that became the property of the natural person, cannot be retained as deductible expenses, even if the company would carry out its activity in said building. 
These expenses cannot be considered expenses actually incurred in order to achieve taxable income, within the meaning of the provisions of Article 21 paragraph 1 of the 
Fiscal Code, and according to the provisions of the following paragraphs, this type of expense is not considered deductible or partially deductible. On the contrary, according to the provisions of Article 21 paragraph 3 letter m of the Fiscal Code the operating, 
maintenance and repair expenses related to a premises located in the personal lodging of a natural person, used also for personal purposes are considered partially deductible. 
Consequently the Tax Code recognizes the deductibility of the operating, maintenance and repair expenses related to a building used in the commercial activity by a company, but not the costs of building a company seat that does not become the property of the company, is not recorded as an asset in the accounting records. 
II. According to Article 10 paragraph 1 letter c of Order no. 2222/2006 on the approval of the Instructions for applying the VAT exemption for the operations provided by Article 143 paragraph 1 letters a-i, Article 143 paragraph 2 and Article 1441 of the Fiscal Code, the exemption is justified, in addition to the invoice and the CMR, and with any other documents such as: contract / order of sale / purchase, insurance documents etc. 
These provisions are not contrary to Community law and to the case-law cited by the appellant, and the tax authority has the opportunity to verify the reality of commercial transactions within reasonable limits. However, the requirement to submit documents relating to the actual transport of goods, given that the motor vehicles referred to in the CMR appeared in the transport documents as being present on routes other than those mentioned in the CMR

– for the invoices relating to the invoices concerned is not proportionate.