by Teodora Luca, Senior Lawyer, L.P. Luca Mihai Cătălin
Following the gradual relaxation of the measures to prevent the spread of COVID 19 and the lifting of restrictions on indoor gambling from 15 June 2020, the second half of June was marked among traditional gambling organizers by the concern caused by the impossibility of fulfilling their tax obligations, in the context in which the Romanian Government postponed a decision regarding the adoption of measures meant to support the companies in handling their financial losses incurred during the business suspension period.
Given the lack of revenue for companies during the implementation of health related measures (18 March – 14 June 2020) and the maturity, on 25 June 2020, of the tax obligations for gambling organizers, the importance of these measures in safeguarding companies is clear, especially for those carrying out activities for which taxes are due in advance, regardless of the level of revenues earned.
Although the proposals submitted by the organizers of traditional gambling did not materialize in a normative act, by adopting, on 25 June 2020, the Government Emergency Ordinance no. 99/2020, the payment deadline for tax obligations, due in the period between 21 March and 25 October 2020, was postponed until 25 October 2020.
In our opinion, there is no doubt that these provisions are also applicable to the tax payment obligations provided by GEO 77/2009 on the organization and operation of gambling.
According to the provisions of art. VII of GEO 29/2020, as amended by GEO 99/2020:
1) As to the tax liabilities falling due as of the effective date of this Emergency ordinance, and not paid before the coming to an end, according to para. (4), of the measures instituted under this article, no default interest and penalties will be due pursuant to the Code of Tax Procedure, as this was approved under Law no. 207/2015, as subsequently amended and supplemented.
(2) By way of derogation from the provisions of Article 157(1)(a) of Law no. 207/2015 on the Code of Tax Procedure, as subsequently amended and supplemented, the tax liabilities reference is made to at para. (1) are not qualified as overdue tax liabilities.
(3) Any on-going forced execution by attaching tax receivables is suspended, and no new such proceedings are to be commenced, except for the forced execution proceedings pursued to recover tax receivables awarded under court judgments rendered in criminal cases. The measures suspending forced execution by attaching pursuable amounts represented by income and liquid assets are applied, by the operation of the law, by credit institutions or garnishees, without the tax bodies being required to pursue any further formalities.
(4) The tax measures provided at paras. (1)-(3) will come to an end on 25 October 2020.
Under the provisions of Article 1(27) of the Code of Tax Procedure, tax liabilities are inclusive of any payment due to be made to the general consolidated budget.
Further, the provisions of art. 1(28) define the main tax obligation as the obligation to pay taxes, fees and social contributions, as well as the obligation of the fiscal body to return the amounts collected without being due and to reimburse the amounts due, in the situations and conditions provided by law.
The right correlative to the tax obligation (tax receivable) is, in turn, defined by reference to the normative acts by which it is established, and not limited to the Tax Code (Art. 1(11) of the Code of Tax Procedure: main tax receivable: the right to collect taxes, fees and social contributions, as well as the taxpayer’s right to a refund of the amounts paid without being due and to the reimbursement of the amounts due, in the situations and conditions provided by law).
According to Art. 13(3) of GEO 77/2009: the fees charged for obtaining the gambling organization license and the gambling operation authorization, the access fee provided in para. (4), as well as the other fees provided in this emergency ordinance constitute revenues to the state budget.
According to Art. 3(2) of the Fiscal Responsibility Law 69/2010, republished, the general consolidated budget represents all the component budgets of the budgetary system, including the state budget, the state social insurance budget, the special funds budgets, the general centralized budget of the administrative-territorial units, the State Treasury budget, the budgets of autonomous public institutions, the budgets of public institutions financed entirely or partially from the state budget, from the state social insurance budget and from the special funds budgets, as the case may be, the budgets of public institutions financed entirely from own revenues, the budget of funds from external loans contracted or guaranteed by the state and whose reimbursement, interest and other costs are provided from public funds, the budget of non-reimbursable external funds, as well as that of other entities classified in the public administration, aggregated, consolidated and adjusted according to Regulation (EU) no. 549/2013 to form a whole;
From the economy of the previously mentioned provisions, it results that the gambling fees are tax obligations due to the general consolidated budget, being provided by other laws, not by the Tax Code, this possibility being established both by the definitions in art. 1(11) and (27-28), respectively, as well as other provisions of the Code of Tax Procedure, of which we present by way of example:
- 26(8): Whenever the Tax Code or other normative acts regulating tax receivables stipulate the joint and several liability of two or more persons for the same tax receivable, the title of such tax receivable shall be issued on the name of each person, also indicating the other persons jointly liable for the relevant receivable.
- (41)(2) Conflict of jurisdiction within the meaning of this article means a conflict arising in connection with the application of the rules of jurisdiction on the administration of tax receivables under this Code and/or, as the case may be, the Tax Code or other laws governing tax receivables in relation to which the conflict arose.
- 154(1): Tax receivables are due at the expiration of the deadlines provided by the Tax Code or by other laws governing them.
In addition, the obligations to pay the fees provided by GEO 77/2009 on the organization and operation of gambling are explicitly defined as permanent tax statement obligations which are included in the tax vector, according to Art. 4(p) of the NAFA Order no. 3725/2017 of the President of NAFA:
The categories of permanent tax statement obligations which are included in the tax vector are:
a)value added tax;
c)income tax on microenterprises;
e)tax on income from salaries and on incomes assimilated to salaries;
g)social insurance contribution due by natural person employees;
h)healthcare social insurance contribution due by natural person employees;
i)labor insurance contribution;
l)contribution to the financing of healthcare expenditures;
m)tax on the natural monopoly in the electricity and natural gas sector;
n)tax on additional revenues obtained as a result of deregulation of prices in the natural gas sector;
o)tax on income from the exploitation of natural resources, other than natural gas;
p)fees due under gambling legislation;
q)business specific tax.
According to Art. 1(39) of the Code of Tax Procedure, the tax vector represents the totality of the types of tax obligations for which there are permanent statement obligations.
Due to all of these arguments and considering the fact that Art. VII(1) of GEO 29/2020 (amended by GEO 99/2020) does not distinguish between the types of tax obligations depending on the normative act enforcing them, in our opinion, the postponement of the payment deadline is also applicable to the tax obligations provided by GEO 77/2009, which are due to the general consolidated budget, namely:
- License fees due by gambling organizers
- Authorization fees due by gambling organizers
- Addiction fees due by slot machine gambling organizers
- Access fees due by casino gambling organizers and poker clubs
- License fees due by companies holding a Class II license.
Not being considered outstanding tax obligations, delays in the performance of the obligations shall not be able to cause the application of the sanction provided by the provisions of Art. 17(2)(a) of GEO 77/2009, respectively shall not be able to cause the revocation of the business organization license.
Regarding the license and authorization fees due in advance for the gambling means/licensed/authorized activities between 21 March 2020 (the date of entry into force of GEO 29/2020) and 25 October 2020, the payment obligation may be postponed until 25 October, but the license or authorization shall become effective on the 1st of the month following the month in which the payment was made.
For this purpose, the provisions of Art. 12(4) of GEO 77/2009 shall be taken into account: 4) The issuing date shall be understood as the first date of the month that follows the month when the documentation submitted by the economic operator was reviewed and favorably cleared, and payment of the amounts due in advance by the economic operator was made, pursuant to the provisions of Article 14 of this Emergency Ordinance.