A limited liability company (LLC) can go through different stages of inactivity, each with its own legal and tax particularities. Three distinct scenarios can be identified, each requiring a specific approach.
First, a newly established LLC may experience an initial period without actual economic activity. This phase, although temporary, marks the beginning of the entity’s fiscal existence, which appears as active in the official registers of the Trade Register and the National Agency for Fiscal Administration (ANAF), despite the absence of concrete economic operations.
The second situation refers to an LLC which, for financial or market conjunctural reasons, temporarily stops its economic activity. In this situation, although formally active in the ONRC and ANAF records, the company does not generate commercial transactions.
Finally, there is also the option of suspending the activity for a fixed period, which cannot exceed three years. This measure is taken when immediate recovery is not possible, but there is an intention to resume trading in the future. Initiation of this procedure automatically triggers the application of a derogatory tax regime, as amended to the Code of Fiscal Procedure by Ordinance 11/2022. During the suspension, the entity remains obliged to file annual financial statements. At the end of the maximum three-year period, the company must opt either to resume its activity or to be definitively struck off the commercial registers.
Even if the LLC is not active, the tax obligations remain. Tax returns continue to be filed, as mentioned above, even if no income has been realized during the period for which they are made.
For these, you will still need the services of an accountant for the preparation and filing of tax returns and annual financial statements, in accordance with the provisions of the Accounting Law No 82/1991, republished, as amended.
When an SRL goes into voluntary inactivity, the first thing to do is to follow the formal route. This is done at the ONRC with only three documents: application for registration, declaration of inactivity at the registered office and secondary ones, resolution of the general meeting of the associates/shareholders/sole shareholder’s decision.
WHAT ARE MY FINANCIAL OBLIGATIONS IF THE SRL HAS NO ACTIVITY IN ROMANIA?
According to art. 316 para. (11) lit. e) of the Tax Code, the competent tax authorities cancel the registration of a person for VAT purposes in the case of taxable persons with a tax period of the calendar month, and the period is six consecutive months, and for those with a tax period of the calendar quarter, the interval is two consecutive calendar quarters.
Companies may avoid filing tax returns by going into temporary inactivity for a maximum of 3 years, provided that they inform the tax authorities and are entered in the commercial register. Art. 101, para. (4) of the Tax Procedure Code allows taxpayers to apply to the central tax authority for approval of other deadlines or conditions for filing returns in case of temporary inactivity or for tax-exempt income.
The decision will be taken by the central tax body in accordance with the powers approved by order of the President of ANAF.
WHAT IS THE DEROGATING REGIME IN ROMANIA?
Companies can opt for the derogatory filing regime in case of temporary inactivity registered with the Trade Register, according to the Order of the President of ANAF no. 889/2016. Therefore, for the duration of the derogatory declaration regime, entities will not be required to file the tax returns required by law.
According to paragraph 3, letter h) of Annex 1 to the above-mentioned Order, temporary inactivity must be entered in the commercial register. The same Annex also sets out the conditions under which taxpayers or payers may benefit from the derogating declaration regime during the period subject to this regime. The cumulative conditions to be met are: “a) not to carry out any kind of activity; b) not to derive operating income, financial income, extraordinary income and/or other items similar to income; c) not to have employed personnel and not to pay income subject to withholding tax; d) to appear in the tax records with all the tax declaration and payment obligations fulfilled; e) are not in the process of settling a negative VAT return with refund option or a request for refund of taxes, duties and contributions; f) are not subject to an ongoing tax inspection; g) are not included in the list of taxpayers / payers declared inactive, except in the situation provided for in Art. 92 para. (1) lit. d) of Law no. 207/2015 on the Fiscal Procedure Code, as subsequently amended and supplemented;” and last but not least, as mentioned, to register the inactivity with the Trade Register.
The taxpayer shall submit the application for the granting of the regime to the tax authority in whose records the taxpayer is registered as a payer of taxes, duties and contributions, accompanied by the proof of the temporary inactivity’s entry in the commercial register, namely a copy of the extract issued by the commercial register office, which attests the temporary suspension of the activity of the company in question.
The scheme can be approved for periods of up to 3 consecutive years. During the period of its application, companies do not submit tax returns 100, 101, 112, 120, 300, except for fractions of a year outside the period of application of the scheme, for which forms 101 and 120 are submitted.
The scheme shall be terminated on the date approved for termination, when at least one condition of validity is not met or when new reporting obligations are introduced. It may be extended only by the submission of a new application, to be approved.
The obligation to file other tax returns and annual financial statements is maintained. Companies which have been inactive since their establishment shall submit a declaration of inactivity within 60 days after the end of the financial year. The application and termination of the regime shall be entered in the taxpayer’s tax assessment.
