Eşalonarea la plată a obligaţiilor fiscale restante! Ce condiţii trebuie îndeplinite pentru a putea beneficia de acest drept
Administraţia Judeţeană a Finanţelor Publice a Judeţului Vâlcea vine în sprijinul contribuabililor care se confruntă cu dificultăţi financiare şi informează că, pentru obligaţiile fiscale restante, pot beneficia de facilităţile la plata acestora prevăzute de Codul de procedură fiscală aprobat prin Legea nr. 207/2015. Procedura de acordare a eşalonării la plată, documentele justificative necesare, precum şi Procedura de aplicare a acordării eşalonării la plată de către organele fiscale subordonate ANAF sunt aprobate prin Ordinul preşedintelui Agenţiei Naţionale de Administrare Fiscală nr. 90/2016. În continuare prezentăm, la modul general, avantajele accesării unei eşalonări la plată, condiţiile şi situaţiile specifice de acordare a eşalonării.
1. Avantajele derulării unei eşalonări la plată
a) neînceperea sau suspendarea executării silite pentru: obligaţiile eşalonate; obligaţiile care constituie condiţie de menţinere a valabilităţii eşalonării, respectiv obligaţii cu termene de plată ulterioare datei comunicării deciziei de eşalonare, diferenţele rezultate din declaraţii rectificative, obligaţii restante nestinse la data comunicării deciziei de eşalonare şi necuprinse în eşalonare, obligaţii pentru care a încetat suspendarea executării după comunicarea deciziei de eşalonare etc.
În cazul popririi bancare, suspendarea executării silite are ca efect: menţinerea indisponibilizării asupra sumelor existente în cont la data comunicării adresei de suspendare, contribuabilul putând efectua plăţi din acestea numai pentru plata obligaţiilor de care depinde menţinerea eşalonării; încetarea indisponibilizării în privinţa încasărilor viitoare.
În cazul terţilor popriţi, suspendarea executării silite are ca efect încetarea indisponibilizării sumelor datorate de aceştia contribuabililor.
Suspendarea executării silite în cazul sechestrelor are ca efect oprirea procedurii de executare silită asupra bunurilor ce fac obiectul sechestrelor.
b) posibilitatea participării la licitaţiile publice deoarece obligaţiile eşalonate la plată nu sunt considerate obligaţii fiscale restante dacă se află în termenul de plată prevăzut în graficul de eşalonare;
c) amânarea penalităţilor de întârziere aferente obligaţiilor fiscale eşalonate, în vederea anulării la finalizarea eşalonării;
d) necalcularea şi nedatorarea penalităţilor de întârziere pe perioada eşalonării la plată cu excepţia situaţiei privind achitarea cu întârziere a ratei de eşalonare.
2. Condiţii generale cumulative de accesare a unei eşalonări la plată
Contribuabilii care solicită eşalonarea trebuie: – să aibă toate declaraţiile fiscale depuse la data eliberării certificatului de atestare fiscală; să se afle în dificultate generată de lipsa temporară de disponibilităţi băneşti; să aibă capacitate financiară de plată pe perioada de eşalonare; să nu fie în procedura insolvenţei sau în dizolvare; să nu se fi stabilit răspunderea potrivit legislaţiei privind insolvenţa şi/sau răspunderea solidară, conform Codului de procedură fiscală.
3. Garanţii
În termen de cel mult 30 de zile de la data comunicării acordului de principiu, debitorul trebuie să constituie garanţii pe perioada eşalonării la plată a obligaţiilor fiscale.
Tipuri de garanţii:
- mijloace băneşti consemnate pe numele debitorului la dispoziţia organului fiscal la o unitate a Trezoreriei Statului sau scrisoare de garanţie/poliţă de asigurare de garanţie (valoarea trebuie să acopere sumele eşalonate şi dobânzile pe perioada eşalonării); sechestrul asigurător asupra bunurilor proprietate a debitorului; contract de ipotecă sau gaj în favoarea organului fiscal, având ca obiect bunuri proprietate a unei terţe persoane. Aceste bunuri trebuie să fie libere de orice sarcini, cu excepţia cazului în care acestea sunt sechestrate exclusiv de către organul fiscal competent, dacă valoarea bunului este acoperitoare pentru obligaţiile terţului şi pentru garantarea obligaţiilor ce se eşalonează. În acest caz, ipoteca se instituie numai pentru un singur contribuabil.
Valoarea garanţiilor reale trebuie să acopere sumele eşalonate, dobânzile pe perioada eşalonării, plus un procent între 4 şi 16%, în funcţie de perioada de eşalonare, respectiv 2,3,4 sau 5 ani.
În cazul ipotecii mobiliare, bunul trebuie să nu aibă durata de funcţionare expirată conform Legii nr. 15/1994, cu excepţia situaţiei în care bunurile au fost supuse reevaluării potrivit regulilor contabile.
În cazul bunurilor oferite pentru sechestru asiguratoriu care sunt deja ipotecate sau gajate valoarea lor trebuie să acopere atât valoarea pentru garantarea obligaţiilor eşalonate, cât şi valoarea pentru care sunt constituite eventuale ipoteci/gajuri în favoarea altor creditori.
Important! Nu trebuie să constituie garanţii:
- instituţiile publice, astfel cum sunt definite prin Legea nr. 500/2002 privind finanţele publice, cu modificările şi completările ulterioare, precum şi prin Legea nr. 273/2006, cu modificările şi completările ulterioare, după caz; autorităţile/serviciile publice autonome înfiinţate prin lege organică; unităţile şi instituţiile de drept public prevăzute la art. 7 din Ordonanţa Guvernului nr. 57/2002 privind cercetarea ştiinţifică şi dezvoltarea tehnologică, aprobată cu modificări şi completări prin Legea nr. 324/2003, cu modificările şi completările ulterioare; instituţiile de învăţământ superior de stat.
4. Situaţii specifice
Exceptând situaţia contribuabililor care nu au obligaţia constituirii de garanţii, se disting mai multe situaţii de acordare a eşalonării la plată, în funcţie de starea patrimonială a contribuabilului şi de nivelul obligaţiilor de plată, astfel:
- persoane juridice cu obligaţii fiscale de până la 20.000 lei: sunt exceptate de la constituirea de garanţii; perioada de eşalonare este de cel mult 5 ani; beneficiază de amânarea la plată a penalităţilor de întârziere aferente obligaţiilor fiscale eşalonate la plată, în vederea anulării.
- persoane juridice cu obligaţii fiscale în cuantum mai mare sau egal cu 20.000 lei: constituie garanţii; perioada de eşalonare este de cel mult 5 ani; beneficiază de amânarea la plată a penalităţilor de întârziere aferente obligaţiilor fiscale eşalonate la plată, în vederea anulării.
- debitori care nu deţin bunuri în proprietate şi care nu constituie garanţii: perioada de eşalonare este de cel mult 5 ani; penalităţile de întârziere aferente obligaţiilor fiscale principale eşalonate nu se amână la plată şi se includ în eşalonare, deci nu pot fi anulate.
- debitori care deţin bunuri în proprietate, dar sunt insuficiente pentru a constitui garanţiile prevăzute de lege: constituie garanţii la valoarea bunurilor deţinute; perioada de eşalonare este de cel mult 5 ani indiferent de cuantumul obligaţiilor fiscale; penalităţile de întârziere aferente obligaţiilor fiscale principale eşalonate nu se amână la plată şi se includ în eşalonare, deci nu pot fi anulate.
- debitori care, deşi deţin bunuri în patrimoniu, nu pot constitui garanţii întrucât sunt gajate şi/sau ipotecate în totalitate în favoarea altor creditori şi nu aduc nici garanţii constituite în favoarea lor de un terţ: perioada de eşalonare este de cel 6 luni indiferent de cuantumul obligaţiilor fiscale; penalităţile de întârziere aferente obligaţiilor fiscale principale eşalonate nu se amână la plată şi se includ în eşalonare, deci nu pot fi anulate.
5. Prevederi speciale aplicabile contribuabililor încadraţi în categoria contribuabililor cu risc fiscal mic
Un contribuabil este încadrat de organul fiscal în categoria contribuabililor cu risc fiscal mic dacă îndeplineşte următoarele criterii de încadrare : nu are fapte înscrise în cazierul fiscal; niciunul dintre administratori şi/sau asociaţi nu a deţinut, în ultimii 5 ani anteriori depunerii cererii, calitatea de administrator sau asociat la persoane juridice care au fost lichidate sau la care a fost declanşată procedura insolvenţei şi la care au rămas obligaţii fiscale neachitate; nu se află în inactivitate temporară înscrisă la registrul comerţului sau în registre ţinute de instanţe judecătoreşti competente; nu are obligații fiscale restante mai mari de 6 luni; nu a înregistrat pierderi contabile în fiecare an din ultimii 3 ani consecutivi; în cazul persoanelor juridice, să fi fost înființate cu minimum 12 luni anterior depunerii cererii.
Condiţii de acordare a eşalonării:
- depunerea cererii la organul fiscal;
- să îndeplinească condiţiile generale cu excepţia condiţiei referitoare la dificultatea financiară;
- să constituie garanţii în valoare de minimum 20% din sumele ce pot face obiectul eşalonării precum şi a penalităţilor ce pot face obiectul amânării la plată.
Important! Perioada de acordare a eşalonării pentru contribuabilii încadraţi în categoria contribuabililor cu risc fiscal mic este de maximum 12 luni.
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