ANAF makes tax decisions for all green energy producers who have negligible self-consumption, less than 1%, and who have not applied reverse taxation (before VAT) to purchase energy in wholesale markets, said Dan Barascu, Head of Tax, Partner, BDO Romania.

“Even if the manufacturer’s license includes your license to trade, you are not acting as a trader. You buy energy in the wholesale market or in the balancing market when you need it, when your energy production facilities are not working. That’s why you buy. Do not buy speculatively. You are not allowed to do it even speculatively,” he said during the TaxEU forum.

According to him, to be a trader, to have a trading license, you have to prove that you have trading experience.

“As a producer, you have to have about 7 engineers, people who answer the phones and that’s it. Your behavior is not that of a trader,” he explained.

According to his statements, you can apply the reverse charge if you have any license that allows you to trade in electricity.

“It is possible that once OPCOM changes its procedures and billing in the reverse charge mode, we will see the other side of the coin. Let’s see another inspection body that will say: look, you won the lawsuits until 2021, then you were right, but why don’t you do more, because you are not behaving like a trader,” Barascu said.

According to him, there is an appeal from the European Commission regarding VAT.

“The Ministry of Finance never took into account the Commission’s interpretation. The CE address says: All who should apply are those with CAEN 3512 codes, ie trade. They have nothing to do with the manufacturers. This is an EY report produced for the EC which sets out and informs who can apply reverse charge in an energy procurement situation. There is no producer there. There is no manufacturer’s CAEN code,” the taxman explained.

*According to HG 1/2026, by way of reverse taxation, no VAT payment is made between the supplier/supplier and the beneficiary of the supplies/services, the latter is obliged, for the transactions performed, with input tax and has the possibility, in principle , to calculate the applicable fee.

In terms of the development of fiscal legislation, there have always been problems in the energy sector, because the Ministry of Finance does not really understand the specific rules in the energy sector, says Barascu.

According to his statements, NARE does not really understand the fiscal topic.

“When you have a problem related to the interpretation of specific energy legislation, it will be a ping-pong game: from NARE to MF, from MF to NARE. This ping pong stops at some point because the ball goes down, you give up,” he said.

The problem of the minimum tax: turnover includes the activity of selling boiler houses or heating installations

“This is an exception to the minimum tax, which refers to the exclusion from the minimum tax on the turnover of companies engaged in the distribution, supply and transportation of electricity and gas,” Barascu also stated.

He stated that the law needs to be changed or that there should be rules.

“These people who have licenses for supply, distribution or transport have licenses for these activities. Supply of electricity means supply to the final consumer in the retail market. By law, these companies also have trade licenses to carry out trade activities on the energy market,” he added.

This means operating exclusively in wholesale markets, i.e. PZU, PZI and balancing market.

“If the law remains as it is, none of these companies can be excluded. why They cannot function without participating in balancing markets,” explained Barascu.

According to the statements, these companies also carry out additional activities: they sell heating plants, boiler houses, power plants, and provide consulting.

“There are all kinds of additional activities, at least in the supply side, to attract customers. If you manage them in the same company, you will be in a situation where you pay the minimum tax,” says Barascu.

The minimum tax problem for energy tax groups

The problem is related to how the minimum tax is calculated when one of the distribution, energy supply companies is part of the tax group.

“If you are part of a tax group, you add up all the turnover figures of all the members of the group, and if it gives you more than 50 million, you pay the minimum tax. Nobody thought about the situation where a company that is not part of the 5 included in the group is excluded and you end up comparing apples to pears: you end up comparing the income tax of 5 companies and comparing to the minimum tax of 3 , because two are excluded,” he said.

The issue of additional tax on oil and gas

“If we have an oil production company that has as a subsidiary activity any other activity than the exclusive distribution of gas and power, it must also pay tax for the other activity. If you have an activity and you earn 100 million euros from non-gas activities, and you also have a gas CAEN, you may find yourself in a situation where you will pay additional taxes,” Barascu said.

So, he says, if there is only one activity in the CAEN code that relates to gas production, you can pay for crude oil.

Lawyer Gabriel Birish gave another example: “If it’s a retail chain that had a bad idea to build a gas station, and out of a billion euros in turnover, it also earns 10 million from a gas station in one of the parking lots. subject to additional tax”.