HG No. was published in the Official Gazette. 1336/2023, which significantly changes the rules of application of the Fiscal Code. Fiscal consultant Adrian Benza analyzed this document, revealing the situation with sales of sweet soft drinks from the point of view of excise duties, the sale of foods with added sugar from the point of view of VAT, as well as other aspects that the consultant considers important. .

GD No. 1336/2023 makes significant changes to the rules of application of the Fiscal Code in the following areas:

a) Unharmonized excise duties, especially regarding excise duties on soft drinks with added sugar;

b) value added tax, especially at a reduced rate of 9% for food products and 19% for food products with added sugar;

c) Income tax from the sale of immovable property of individuals, specific situations that are quite rare in practical activity.

Let’s develop these changes.

Changes regarding non-harmonized excise duties

According to Law No. 296/2023, it was regulated that soft drinks containing more than 5 grams of added sugar per 100 ml of liquid are products subject to harmonized excise duties, for which the person who carries out production, intra-community purchase or import must to pay excise duty to the state budget.

This methodological norm provided that the activity of production of sweet non-alcoholic beverages is excluded from the obligation to pay excise tax in the following cases:

• For non-alcoholic beverages made on site, to which sugar is added at the request of the consumer;

• In the case of production of sweet soft drinks within the limits of restaurant and public catering.

In practice, the legislator currently excludes from the obligation to pay non-harmonized excise duties sweet soft drinks, lemonades with added sugar, sweet teas, coffee with sugar and other non-alcoholic drinks produced at restaurant, public catering, confectionery and other food businesses, where the customer or sets the quantity of sugar, or receives a soft drink for consumption with a certain amount of sugar/honey, and the consumer chooses to sweeten the soft drink.

Very important: in a situation where the duty to pay excise duty is established for sweet soft drinks, for example in the case of a producer of soft drinks with added sugar in the amount of more than 5 grams per 100 ml of product, the duty to pay excise duty is preserved, and this economic entity is obliged to inform the customs authority about the production of sweet soft drinks. The form of notification is established by this normative act.

Changes regarding VAT in the supply of food products with added sugar

• Law No. 296/2023 as amended by GEO No. No. 115/2023, it was established that the sale of food products with added sugar in the amount of more than 10 grams of sugar per 100 g of the product is subject to a VAT rate of 19%. In this situation, the VAT rate of 19% also applies to the supply of soft drinks from the category of sweet soft drinks (regardless of the amount of sugar) code NC 2202, respectively, to the supply of alcoholic beverages, where the 19% VAT rate is maintained.

I make an exception three types of food products sold at the VAT rate of 9%, for which the amount of added sugar exceeds 10 grams per 100 g of product.

These products are: Muffins; cookies; Powdered milk is intended for consumption by newborns, infants and children.

The legislator develops and identifies the concepts of cakes, cookies and milk powder from the point of view of reducing the VAT rate to 9% as follows:

• By kozonak we mean the product sold under that name and which falls under NC code 1905 Bread, pastry and biscuit products, whether or not containing cocoa; wafers, empty boxes of the type used for medicine, wafers with lids, dry pasta of flour, starch or starch sheets and similar products (not all are subject to the reduced rate, but only cakes contained in this CN code). If it is sold under a different name, such as panettone or checks, the VAT rate is 19%.

• Cookies are food products sold under the name cookies that fall under NC codes 1905 31, 1905 90 45, and 2309. We retain this aspect of marketing cookies under the name cookies. This means that similar products, such as eugenias, waffles, etc., are billed at a VAT rate of 19% if the amount of added sugar in 100 grams of the product exceeds 10 grams.

• Milk powder intended for newborns, infants and young children, respectively, infant formula, follow-on formula and growing-up formula, means those foodstuffs which may contain added sugar in CN codes 0402, 1901 10.

Note: the rules are much more normatively developed and introduce additional rules regarding the VAT rate of 9% for the supply of social housing, VAT rates for the sale of packages of goods and services, such as accommodation in the hotel sector through a package that includes alcoholic beverages, etc.

Tax on income from the sale of real estate of individuals

In the case of tax on income from the sale of immovable property of individuals, the rules of application develop a regulatory framework for the concept of construction from the point of view of taxation, when this construction is transferred from the inheritance of an individual to another person. and regulate some specific situations, such as the transfer of property by donation, due to the death of the legal owner to heirs or contribution to social capital.

The rules of application regulate exactly who is the tax payer and how the tax is calculated, when the actual price is not paid, the value of the transaction starts from the value declared between the parties. The legislator establishes that in case of dismembered transfer of ownership, the tax is paid on the value declared between the parties, but not less than 20% of the value of the property in the notarial grid. When transferring bare property, the taxable value is the declared value, but not less than 80% of the notarial net.