Fiscal facilities in the field of gambling
by Loredana Dumitru, Junior lawyer, C.A. LUCA Mihai Catalin
Considering the need to adopt tools to protect the business environment, as a result of decisions taken by national authorities, to suspend activities, and other measures to reduce the spread of the SARS-CoV-2 coronavirus pandemic, in support of economic operators suffered as a result of the Coronavirus pandemic, the Government of Romania issued on May 27, 2020 the Emergency Ordinance no. 90 for the amendment of the Government Ordinance no. 6/2019 on the establishment of fiscal facilities, through which measures were instituted to restructure the outstanding budgetary obligations on March 31, 2020.
Thus, the debtors (legal persons of public or private law), in financial difficulty and for which there is a risk of insolvency, can restructure their main budgetary obligations outstanding on March 31, 2020 and unpaid until the date of issuance of the fiscal attestation certificate, as well as ancillary budgetary obligations. It follows that the facilities apply to both the MAIN OBLIGATIONS and the ACCESSORY OBLIGATIONS.
As the regulation applies to economic operators as a whole, we appreciate that the normative act is of interest from the perspective of gambling organizers, especially since the regulations related to their post-emergency/pandemic are few and far between.
We will therefore deal with the provisions of the Emergency Ordinance no. 90 from the perspective of gambling operators and we will focus on the conditions under which the regulated facilities are granted, on the procedure and last but not least, on the tax obligations falling under the facilities set up (with interest in the payment obligations related to license fee and gambling authorization fee).
Regarding the CONDITIONS in order to benefit from the restructuring of the budgetary obligations, these are specified in the content of art. 2 of the Government Ordinance no. 6/2019.
Thus, in order to benefit from the restructuring of budgetary obligations, the debtor must cumulatively meet the following conditions:
a) not to meet the conditions to benefit from the payment rescheduling regulated by the Fiscal Procedure Code;
b) present a restructuring plan, drawn up by an independent expert;
c) not to be in insolvency proceedings;
d) not to have been dissolved, according to the legal provisions in force;
e) to have submitted all the fiscal declarations, according to the fiscal vector;
The debtor who wishes to restructure his budgetary obligations has the obligation to NOTIFY the competent fiscal body about his intention by September 30, 2020, under the sanction of forfeiture of the right to benefit from the restructuring of budgetary obligations.
Within a maximum of 5 working days from the date of submission of the notification, the competent fiscal body issues ex officio the fiscal attestation certificate, which it communicates to the debtor.
The budgetary obligations subject to restructuring shall be recorded in the payer’s record and shall be extinguished only after the settlement of the budgetary obligations due in the period between 1 April 2020 and the date of submission of the restructuring application.
Regarding the RESTRUCTURING PLAN, according to art. 4 of GEO 6/2019, it must include:
a) the presentation of the causes and the extent of the debtor’s financial difficulty, as well as the measures taken by the debtor to overcome them;
b) the patrimonial situation of the debtor;
c) information on the causes for which the debtor cannot benefit from the payment rescheduling according to the Fiscal Procedure Code;
d) the debtor’s restructuring measures and the ways in which the debtor understands to overcome the financial difficulty, with clear implementation deadlines, the restructuring measures of the budgetary obligations, as well as the presentation of the relevant economic-financial indicators to demonstrate the restoration of the debtor’s viability.
The restructuring of budgetary obligations may consist of one or more measures, one of which must be the facilitation of the payment of budgetary obligations. The measures for restructuring the budgetary obligations that may be proposed by the restructuring plan are the following:
a) facilities for the payment of the budgetary obligations – the staggered payment of the main budgetary obligations, as well as the postponement for the payment of the accessories and / or of a share of the main budgetary obligations, in order to cancel them at the end of the restructuring plan.
b) cancellation of some main budgetary obligations at the end of the restructuring plan.
The measure of cancellation of some main budgetary obligations may take place for a maximum of 50% of the total main budgetary obligations, and may not have as object main budgetary and ancillary obligations representing state aid to be recovered.
In the case of debtors who have included in the restructuring plan the measure of cancellation of a maximum amount of 30% inclusive of the total main budgetary obligations, the debtor must pay 5% of the amount of the main budgetary obligations that are subject to facilitation of payment, by the date of submission restructuring.
In the case of debtors who have included in the restructuring plan the measure of cancellation of an amount between 30% and 40% inclusive of the total main budgetary obligations, the debtor must pay 10% of the amount of the main budgetary obligations subject to payment facilitation, up to the date of submission of the restructuring application.
In the case of debtors who have included in the restructuring plan also the measure of cancellation of an amount between 40% and 50% inclusive of the total main budgetary obligations, the debtor must pay 15% of the amount of the main budgetary obligations that are subject to payment facilitation, until the date of submission of the restructuring application.
In order to facilitate the payment of budgetary obligations, the restructuring plan must provide for the following:
a) the period required to facilitate payment, as well as the amount and terms of payment of the installments set out in a payment schedule. The payment facility must not exceed 7 years, with the possibility of extension;
b) the method of payment of the budgetary obligations (the debtor must pay, by the date of submission of the restructuring request, the budgetary obligations due in the period between 1 April 2020 and the date of submission of the restructuring request);
The restructuring plan must be approved by the general meeting of shareholders, shareholders or the sole shareholder, as the case may be.
Regarding the METHOD OF SOLVING THE APPLICATION, this is regulated in art. 6 of GEO 6/2019.
Thus, if the competent fiscal body finds that the conditions are met, it issues a decision approving the restructuring of the budgetary obligations.
If the restructuring plan contains the measure to facilitate payment, possibly combined with the measure of cancellation, in part, of some main budgetary obligations and / or with the other measures for restructuring the budgetary obligations, the fiscal body shall proceed as follows:
a) issues a decision to facilitate the payment of the main budgetary obligations.
b) issues a decision to defer the payment of interest, penalties and all accessories due by the debtor related to the main budgetary obligations that are the object of the payment restructuring.
c) issues a decision to postpone the payment of the main budgetary obligations proposed to be canceled.
If the competent fiscal body finds that the debtor does not meet the stipulated conditions analyzed above, it requests the debtor to make the necessary corrections.
The budgetary obligations subject to restructuring are not considered outstanding obligations.
The debtor submits to the competent fiscal body the REQUEST FOR RESTRUCTURING THE REMAINING OBLIGATIONS, together with the restructuring plan and the test of the prudent private creditor.
In the analysis of the application submitted according to the competent fiscal body, it verifies:
a) if the debtor is in difficulty generated by the lack of cash and has the financial capacity to pay in order to benefit from the payment rescheduling according to the Fiscal Procedure Code;
b) whether the restructuring plan contains the elements set out in the restructuring plan specified above;
c) whether the measures for restructuring budgetary obligations comply with the conditions provided by law and analyzed above;
d) the existence of restructuring measures that ensure the restoration of viability provided by the independent expert.
The request for restructuring the budgetary obligations shall be resolved by the competent fiscal body within a maximum of 30 days from the date of its registration and may be submitted until December 15, 2020, under the sanction of forfeiture.
During the period of development of the restructuring plan, the debtor has the obligation to fulfill the measures provided in the restructuring plan, within the terms established in it.
In this sense, the independent expert carries out a permanent monitoring of the debtor, periodically drawing up a report on the implementation stage, which he sends to the debtor and the fiscal body.
Regarding the ACCESSORIES, for the budgetary obligations that are the object of the restructuring, no accessory payment obligations are due and calculated from the date of approval of the restructuring plan.
An important provision for gambling organizers is found in art. 16 of GEO 6/2019 according to which: For debtors who have requested the restructuring of budgetary obligations and who must pay the budgetary obligations administered by the central fiscal body within a certain period in order to maintain the authorization, agreement or other similar administrative act, the competent authority does not revoke/does not suspend the act on the grounds of non-payment of budgetary obligations within the term provided in the specific legislation.
Regarding the FINALIZATION OF THE RESTRUCTURING PLAN, in case the debtor’s restructuring measures as well as the budgetary obligations restructuring measures have been carried out, the restructuring plan is considered completed and the interests, penalties and all accessories due by the debtor are postponed. payment, as well as the main budgetary obligations deferred to payment are canceled by decision, which is communicated to the debtor together with the decision to finalize the restructuring plan.
The analyzed provisions are of interest to the organizers of gambling, especially with regard to the payment obligations related to the license fee and the authorization fee. Given that these are budgetary obligations within the meaning of the above Ordinance, it is important to further determine the legal destination of these obligations and to establish, in order for a correct application of the facilities established, whether there is an accessory relationship between these two obligations or not.
The arguments which support the idea that there is an ancillary relationship between those two obligations starts from the inseparable link between the organization license and the gaming license, in the sense that the license does not exist independently of the license. gambling organization, which is obtained by the gambling organizer as a result of obtaining a gambling organization license.
The arguments in support of the main nature of both obligations can be found precisely for the purpose for which the documents are issued. Thus, the license is issued for the organization of gambling, while the authorization is granted for the operation of gambling, the legislation of gambling comprising separate procedures for both licensing and authorization.
Although the arguments in support of the main character of each of the payment obligations, we consider that the authorization to operate gambling is ancillary to the license to organize gambling precisely in view of the fact that in the absence of the license to organize gambling, the operating license has no effect. Thus, you cannot exploit an activity that you do not have the right to carry out.
In conclusion, we consider that under the analyzed provisions, the gambling organizer can request both facilities regarding the payment of the obligations related to the licensing fee consisting in the staggered payment of the license fee, as well as in the postponement of the payment of authorization fees and/or of a license fee, in order to cancel them at the end of the restructuring plan as well as to cancel the obligations related to the license fee at the end of the restructuring plan (of course, in compliance with all the other conditions presented above).
Fiscal facilities in the field of gambling