National regulations on the obligation of economic operators to use fiscal electronic cash registers – consequences on the activity of gambling
Series of articles from “The Practice of Gambling” by Anchidim Zagrean, Rombet Vice-President
A particular problem, in the unitary application of the legal provisions, with serious repercussions in the activity of gambling organizers in case of non-observance, is the package of regulations regarding the obligation of the economic operators to use fiscal electronic cash registers.
Why are these regulations a practical application issue for those who organize and exploit gambling?
First of all, since Article 1 of EGO 28 of 1999, as updated, provides that it is mandatory for those who receive, in cash or by bank card, in whole or in part, the value of the services rendered directly to the population are required to use electronic fiscal cash registers.
As a result of this legal provision, the issued tax bill must have printed on the counter value of a service rendered and paid in cash or by bank card, but this condition is not fulfilled in the gambling activity.
In the gambling activity, the amount earned by the player is not income for the organizer (as a result of a service rendered), this amount represents the stake played as such by the release of auxiliary gaming and is governed by the special rule of gambling, in the sense that this amount is the participation fee for the game.
Secondly, the fact that, by regulating the obligation on economic operators to use electronic cash registers, it is strictly forbidden for an economic operator to provide customers with documents evidencing the payment of the value of purchased goods or services other than the receipts.
On the other hand, gambling-specific legislation obliges the organizers, in return for the amounts deposited, to release gambling means, impulses, vouchers or other such means, which constitute, within the meaning of OUG 77/2009, auxiliary means of gaming and they compete in the organization and operation of gambling.
Also, the special regulation obliges the gambling organizer to pay the earnings of the physical person who presented tokens, coupons, tickets or other means to prove his gain, evidence that is presented in material terms.
A first conclusion to be drawn from the above is that the gambling organizer is required to breach one of the two legal provisions by assuming the consequences and the most serious consequence is the breach of the special regulation which means, in practice, the loss of the right to organize and exploit gambling. By violating the tax law regulation, it conflicts with ANAF representatives who, in the history of earlier years, do not accept that these obligations to issue a receipt do not refer to the amounts collected by the organizers as stakes, but to the value of the services performed/granted.
Thirdly, a particular problem in the practice of regulating cash registers is how the tax authority understood to enforce the law by adopting the Methodological Norms, and this secondary rule simply modifies both the meaning and the content of the provisions of the main law, when developing
the exemption from the use of cash registers for a number of operations, as follows:
– The law provides for exemptions for activities for which receipts are based on fixed-rate vouchers printed in accordance with the law – tickets for exhibitions, museums, exhibitions, fairs and gardens, zoos and botanical gardens, libraries, car park, gambling tickets and the like;
In the Implementing Rules, in its own interpretation, the legal provision undergoes a total transformation, becoming fixed vouchers and the fixed amount collected from the client being pre-printed on the document issued to him. Moreover, it is added that – fixed odds bets for which users will issue tax vouchers for the amounts collected from customers – do not fall under the provisions of the Emergency Ordinance.
Now, the second conclusion can be drawn, which suggests that this secondary regulation was adopted to protect ANAF from past mistakes in connection with fixed betting gambling activity, in that the adoption of these Rules did not respect the provisions of Law 24 of 2000, that stated the following:
n the normative act draft, drawn up on the basis of a higher- level act, can not exceed the limits of the competence established by that act, nor can it be contrary to its principles and provisions;
n the draft normative act must be correlated with the Community regulations and the international treaties to which Romania is a party;
n In a normative act issued on the basis of and in the execution of another higher-level normative act, the reproduction of some of the provisions of the higher act is not used, it is only advisable to indicate the reference texts. In such cases, taking over the norms in the lower act can only be done to develop or detach the solutions in the basic act;
n the drafting of the normative acts must be preceded, according to their importance and complexity, by a scientific documentation and analysis activity, for a thorough knowledge of the economic and social realities to be regulated, the history of the legislation in that field, as well as the similar regulations in foreign law, especially the countries of the European Union;
n the initiators of the draft legislative acts may request additional information from the Legislative Council and other authorities or institutions with information duties in their respective field for their legislative documentation.
The third conclusion is that the national authority deliberately introduces discriminatory conditions for gambling organizers, with different treatment for gamblers in fixed-line betting, to other operators, including compared to the Romanian Lottery, which, otherwise, is found in the regulator’s own yard.
We will return with some other opinions in the next issue of the magazine…
