On the 3rd of April 2022, Law 72/2022 entered into force and introduced new amendments regarding per-diem:

• Same fiscal treatment for all types of per-diems;
• The second limit for the determination of non-taxable amounts;
• Cancellation of fiscal obligations regarding subsequently reclassified per-diems related to period 1st of July 2015 – 3rd of April 2022;
• Work Inspection authority involved in the classification of tax obligations related to per-diems.

1. Fiscal treatment of per-diems

A. Per-diems offered to employees

The employees receive amounts (called per-diems) for covering expenses (others than the transportation and accommodation), which appear when they have job-related travels and activities in other cities, inside the country or abroad, as follows:

• Delegation indemnity.
• Detachment indemnity.
• Transnational detachment indemnity.
• Supplementary amounts related to mobility clause from employment contract.
• Other similar amounts.

Starting May 2022, the employers will withhold and pay Tax on salary, Pension Contribution, Health Contribution, and Work Insurance Contribution for per-diems (any of those mentioned above) which are higher than:

• inside the country: 2.5 multiplied by the per-diem established by Government decision for public institutions but limited to 3 basic salaries related to the employee’s position (*);
• Abroad: 2.5 multiplied by the per-diem established by the Government decision for Romanian personnel sent outside the country in temporary missions but limited to 3 basic salaries related to the employee’s position (*).

(*) The limit of 3 basic salaries related to the employee’s position is determined as follows: 

3 * Basic salary / No of working days of that month * No days with delegation/detachment/rendering of activity in other cities, inside or outside the country.

        2. Per-diems offered to mandate contractual associates

The contractual partners (administrators, directors, directorate members, members of the supervisory board, and managers) receive indemnities and similar amounts for covering expenses (other than the transportation and accommodation), which appear when they have activity-related travels in other cities, inside the country or abroad.

Starting May 2022, the companies will withhold and pay Tax on salary, Pension Contribution, Health Contribution, and Work Insurance Contribution for per-diems higher than:

• inside the country: 2.5 multiplied by the per-diem established by Government decision for public institutions, but limited to 3 remunerations according to legal report (**);
• Abroad: 2.5 multiplied by the per-diem established by the Government decision for Romanian personnel sent outside the country in temporary missions but limited to 3 remunerations according to a legal report (**).

(**) The limit of 3 remunerations according to the legal report is determined as follows: 

3 * Remuneration / No working days of that month * No days with activity-related travels in other cities, inside or outside the country.

2. Work Inspection authority involved in reclassification of tax obligations related to per-diems

If the audit from the Labor Inspection authority identifies employees in the situation of delegation, detachment, and transnational detachment, the tax authorities can proceed to a tax reconsideration of the taxable basis for the amounts granted:

– delegation indemnity.

– detachment indemnity.

– transnational detachment indemnity.

– additional amounts related to the mobility clause from the employment contract.

Based on the documents presented by the employers, the Work Inspection authority should confirm the nature of the amounts offered as delegation indemnity, detachment indemnity, transnational detachment indemnity, additional payments related to the mobility clause from the employment contract:

• either at the request of the authorities and of the public institutions and other entities;
• By default, after labor inspection – the result will also be transmitted to the Tax Authority (ANAF).

Therefore, we recommend paying more attention to the internal documents referring to delegation, detachment, transnational detachment, business travels, and mobility clauses from employment contracts.

3. Fiscal amnesty for reclassified per-diems 

The fiscal obligations (***), established by the tax authority through a tax decision issued and communicated to the taxpayer, are canceled if:

• they are related to the period 1st of July 2015 – 3rd of April 2022.
• they have not been paid.
• They have appeared as a subsequent reclassification of per-diems obtained by employees of Romanian employers who rendered their activity abroad during delegation, detachment, and generating job-related activities.

(***) The above-mentioned fiscal obligations represent the differences between principal fiscal liability and the related accessories generated by reclassifying per-diems.

If these fiscal obligations have been covered by payment, compensation, enforcement, exemption, cancelation, prescription, and other ways, they can be reimbursed to taxpayers, but only by request. The prescription term starts on the 3rd of April 2022.

The tax authority will decide to cancel those mentioned above and inform the taxpayer.