Q: How does Romanian law treat the distribution of software license and distribution of maintenance services, i.e. service-packs, care-packs (in particular: VAT taxation, specific rules of invoicing, payment terms, withholding tax)?
A: The intercommunity supply of goods and IT related services is taxable using the reversed charge method in the country the beneficiary having a valid VAT code for intercommunity transactions resides.
According to art. 280-282 of the Fiscal Code, in case of domestic sales, the VAT is generally payable at the moment the products are sold or the services are performed, unless and invoice is issued earlier.
The VAT for intercommunity transactions is payable before the 15th of the month following the supply, if the invoice is not issued earlier.
There are exemptions such as: in case of the supply of goods and services subject to be tested and approved by the client, the VAT is payable when the client issued the approval.
According to article 223 of the Fiscal Code, the following services provided by the non residents to Romanian companies are taxable in Romania with 16% withholding tax: commission (as brokerage fees), services generating payments royalties as well as management and consulting regardless if performed in Romania or abroad and any other services performed in Romania, excluding international transportation services.
If Romania and the country the provider resides have signed a treaty to avoid the double taxation, the provisions of this treaty prevail. The conditions to apply the treaty are: the fiscal residence certificate of the provider to be available in original translated and certified in Romania and the eventual tax must be withheld.
According to the treaty to avoid the double taxation between Romania and Poland, royalties paid by Romanian companies to companies in Poland are taxable with 10% withholding tax.
However, the EU rules regarding the tax exemption for payment of royalties and interest to associated companies are also applicable.
The parties may apply the most convenient of the 3 mentioned regulations (local law, Double taxation treaty and EU regulations)