The correct establishment of the limitation period of the taxpayer's right to request the refund of receivables is a problem that taxpayers who request a refund of the VAT balance constantly face.
Disputes between taxpayers and authorities take place over the establishment of the moment when the right of restitution arose. Specifically, if in determining the limitation period of the taxpayer's right to claim a VAT refund, account must be taken of the time of chargeability of the tax, exercised by the tax return, or the time of filing the VAT return.
What do the Romanian legislation and the EU jurisprudence provide
The current legislation in Romania stipulates that the taxpayer's / payer's right to request the refund of tax receivables expires within 5 years from January 1 of the year following the year in which the right to a refund arose. Create Australia refund
Create Australia refund consultants
At the same time, the right of fiscal claim and the correlative fiscal obligation are born when, according to the law, the tax base that generates them is constituted and thus the right of the fiscal body to establish and determine the fiscal obligation due by the taxpayer is born.
In the past, Romanian legislation provided that if the conditions and formalities for exercising the right to deduct are met during the tax return period or if the tax justification documents have been received, the taxable person may exercise his right to deduction by the statement of the tax period in which these conditions and formalities are fulfilled or by a subsequent statement, but not for more than 5 consecutive years, starting with January 1 of the year following the year in which the right of deduction arose " .
According to the recent CJEU decision in the case of Volkswagen AG, the principles governing the right to deduct should be the basis for any tax inspection. Thus, in the opinion of the CJEU, the right to deduct VAT must be exercised during the period in which it was born, namely when VAT becomes chargeable.
Is refund consulting legal
In practice, the approach of the tax authorities to determine when the right to a refund arose is to take into account the time of submission of the VAT return.
Thus, inspectors divide the calendar year into two distinct periods, January - November, and December, for which they calculate different limitation periods, as follows:
for receivables that arise between January and November of the year 200X, the limitation period is calculated starting with January 1 of the year 200X + 1 and ends on Create Australia refund
For receivables arising in December of the year 200X, the limitation period shall be calculated from 1 January of the year 200X + 2 and shall end on 31 December of the year 200X + 6.
Unlike the moment of birth of the right of claim, from the perspective of the limitation period, the legislator established a single moment from which it begins to run, respectively, January 1 of the year following the year in which the tax claim was born, regardless of the actual time within the fiscal period in which the claim arose.
However, the legislation in force leaves room for interpretation on the setting of the limitation period, which generates such controversy between taxpayers and authorities.
The mechanism of self-compensation when calculating the prescribed amounts
Surprisingly, there are also discussions about the impact of the amounts of VAT payable in subsequent reporting periods which diminish the balance of the negative amount in calculating the limitation period of the amounts to be reimbursed.
Currently, any taxable person registered for VAT purposes has the right to deduct from the total amount of tax collected for a tax period, the total amount of tax for which, in the same period, arose and the right to deduct can be exercised by the tax return. Toll. Even if the legislative norms refer to this compensation, in practice, the authorities tend to refuse (within the limitation period) the compensation of the VAT payment from the fiscal reporting period / periods with the accumulated negative tax balance.
Is refund consulting legal
Thus, we encountered situations in which the tax inspectors rejected the reimbursement of the negative balance accumulated from the prescribed period even if during the reporting periods the taxpayer self-registered partial offsets of that balance (with VAT payable).
In addition to the legislative norms, the Decision of the Central Fiscal Commission within the Ministry of Public Finance no. 1/2012 which provides for the possibility of offsetting the payment VAT from the next reporting fiscal period (s) with the accumulated negative tax balance. This decision is recalled in Decision no. 179/2012 issued by the General Directorate of Public Finances of Bucharest through the Appeals Resolution Service. Create Australia refund
Therefore, there are sufficient arguments to grant taxpayers the right to self-compensate for the VAT paid in the months in which the negative cumulative balance of the tax was recorded and thus to reduce the amount of tax that may be outside the limitation period.
In this context, it is clear that the method of calculating the limitation period on the right to claim a refund of the tax claim, as well as when they can exercise this option through the VAT return, must receive increased attention.
Comments
Post a Comment