The issue of related businesses, i.e. persons who are married, requires clarification from the Ministry of Finance, and the Chamber of Tax Consultants (CCF) has sent a letter to the institution presenting several situations that require clarification regarding the interpretation of the law, adopted last year. year by the Government.

It is not clear what the Ministry of Finance thinks about married people and relatives.

An example given by the Chamber of Fiscal Advisers is a a family (husband-wife) where one spouse has the majority of voting rights in a healthcare company and the other spouse has the majority of voting rights in an accounting services company, for example, each of the 2 spouses has administrator rights in a company in which they hold the majority of the voting rights, and have no authority or participation in the management of another company (in both situations, the remaining voting rights belong to third parties).

In such a situation, it is unclear to what extent the 2 companies are considered related enterprises – it is unclear whether the simple fact that the 2 shareholders/partners are husband and wife is considered to be within the scope of the two companies for any of the reports described above.

“In our opinion, taking into account the fact that each of the two spouses separately realizes the qualities of a shareholder/associate participant and administrator in one of the 2 companies, it is considered that within the meaning of para. (4) of Art. 44 of Law No. 346/2004, which the two companies do not represent

of related enterprises, since none of the coefficients described in Art. 44 par. (1) of Law No. 346/2004, two spouses do not act together,” says the Chamber of Tax Consultants.

Another situation that needs clarification

2 shareholders/associates (they are not relatives or husband/wife) own 50% each in 2 companies that do not have a single administrator and work in the field of IT (both with CAEN code 6201 – custom software development activities (client- oriented software) ).

It is not clear to what extent these enterprises can be considered related.

“Thus, upon first analysis of the statutory regulation, it may appear that these two companies are not related enterprises – neither of them holds the majority of voting rights in the other / neither has the right to appoint or remove the majority of the members of the board of directors, management or supervision of by another enterprise / no one has the right to exercise a dominant influence on another enterprise on the basis of a contract concluded with this enterprise or a provision in its charter / no one is a shareholder or associated participant of another enterprise and, thus, owns the majority of voting rights of shareholders or associated persons another company,” says CCF.

However, tax consultants point out that according to the presented provisions “Enterprises between which there are any of the relationships described above through an individual or a group of individuals acting in concert are also considered related enterprises if they carry out their activities or part of their activities in the same relevant market or in adjacent markets”.

From the analysis of these provisions, it is unclear to what extent in the given example the shareholders/associates, each of whom owns 50% of each company separately, are considered related enterprises – accordingly, it is unclear whether, due to the existing ownership of shares, it is considered that within the framework of the two companies any of the relationships described above.

“According to the above provisions, it is understood that in the given example, given that two shareholders/associates own shares in two companies with the same object of activity, then it is considered that within the meaning of para. (4) of Art. 44 of Law No. 346/2004, that the two companies do not represent related enterprises, since none of the coefficients described in Art. 44 par. (1) from Law No. 346/2004 – even with the application of the provisions of para. 4 of the same article,” the organization notes.