TAX INCENTIVES: NEW REGULATIONS IN THE CONSTRUCTION FIELD

The procedure for granting tax incentives in the construction field enacted under the Order of the Ministry of Finances no. 1528/2022 was modified by the Order no. 2044/2023 published in the Official Journal no. 607 of July 3, 2023.

The changes regard both the method of calculation of the turnover of companies acting in the construction sector and the monthly revenue of their employees and are aimed at bringing the procedure in line with the changes made to the Tax Code under the Law no. 370/2022 effective of December 23, 2022.

Changes brought to the calculation method of the turnover

Under the new Order, the granting of the fiscal incentives for employees in the construction field falls to the employer, legal or natural person, who carries out the activities under the CAEN codes explicitly provided under article 60, point 5 letter a) of the Tax Code and who meets cumulatively the following conditions for being granted the tax incentives¹ .

Consequently, in order to benefit from such tax incentives, at least 80% of the overall turnover of the employer must result from carrying out the hereinabove activities and other activities related to the construction field.

Under the new provisions, companies existing on January 1st of each year shall calculate the turnover based on the percentage of the „turnover resulting from the construction activity” in the „overall turnover”, cumulated for the corresponding period of the current year, including the month in which the exemption applies. If this percentage is at least 80% of the overall turnover, the employees shall benefit of tax incentives during the current year provided that the condition under art.60 point 5 letter a) of the Tax Code is complied with during the whole period when the tax incentive is granted.

For newly incorporated companies, the indicators pertaining to „the turnover resulting from the construction activity” and the „overall turnover” are calculated cumulatively from the registration date, including the month for which the exemption applies. The 80% percentage is required to qualify for the tax incentives.

For the record, according with the provisions of the article 60.point 5 letter b^1 of the Tax Code, as modified starting with December 23, 2022 under the Law 370/2022, the following indicators are used to determine the 80% percentage :

• the turnover resulting from the construction activity (includes only the revenues resulting from the construction activity carried out in the Romanian territory, including by posted employees);
• the overall turnover (includes the revenues resulting from the overall activity carried out in the Romanian territory).

Therefore, the procedure under the new Order provided for the same indicators, in line with the Tax Code.

New changes regarding the gross salary

The gross monthly salary of the employees of companies acting in the construction field, who can benefit from tax incentives until December 31, 2028, was also modified under the new Order. Prior to the enactment of the current modifications, the procedure was based on the monthly gross salary in the construction field of 3,000 lei / month (applicable in 2022), whereas the new legal provisions relate the tax incentives to the new minimum basic gross salary applicable in the construction field starting with January 1, 2023, namely of 4,000 lei (according to the GEO no. 168/2022).

Thus, the tax incentive is granted as following:

• For full time employment contracts: the gross monthly revenue is calculated based on a gross employment salary for 8 hours/ day of minimum 4,000 lei/month;
• For part-time employment contracts: the tax incentives are granted only if the gross monthly revenue from salary and salary-related revenues is calculated proportionally with the gross salary pertaining to full-time working program of 8 hours/day;
• If a natural person gains revenues from two or several individual employment contracts, in the same month, from the same employer, and if the gross revenue is calculated for a gross salary for 8 hours/day of minimum 4,000 lei, the revenues pertaining to these contracts are cumulated. In this case, the tax incentives are granted for salary and salary related revenues which cumulated do not top the threshold provided under article 60 point 5 letter c) of the Tax Code.

The new order also provides that the tax incentives may be granted for monthly gross revenues from salaries and salary-related revenues gained under an employment contract lower than 4,000 lei/month, only if such revenues are calculated for a gross salary at least equaling the minimum basis gross at country level of 4,000 lei/month, excluding indemnities, bonuses, and other additions, for an average working program of 165,333 hours / month.

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Note

1. The tax incentives for the employees are: exemption from payment of the income tax (10%) and the CASS contribution (10%), reduction of the CAS (pension) contribution from 25% to 21,25%. The employees benefiting from such incentives who must pay the private pension contribution under the Law 411/2004 are exempted from the payment of this contribution of 3,75% within the limit of the percentage provided hereinabove. The employees, in their turn, benefit from a reduction of the labor contribution from 2,25% to 0,3375%. According to the legal provisions in force, such incentives are intended to be granted until December 31, 2028.