The Consequences for the Romanian State Budget Generated Through the Inappropriate Interpretation/ Evading of the Civil and Tax Legislation in Relation to the Sale of Second-Hand Vehicles

Vehicles that are deemed as second-hand can benefit from a special VAT regime that allows the tax to be applied only to the profit margin in the case of resale of second-hand goods. As a consequence, VAT does not apply to the acquisition value. One of these situations is when an individual sells a second-hand vehicle to a firm registered for VAT purposes at the price excluding VAT, and the firm subsequently sells it as commodity to another firm or individual, applying VAT only to its gross profit. At the same time, the special system also applies when the intermediary reselling firm acquired the vehicle through a margin-based procedure from a company, including from within the Community. Since this is a regime that allows the reduction of the VAT tax base, “the financial engineers”, focused on identifying new methods of “fiscal optimization”, are tempted to force the legal boundary of optimization and find solutions that are way outside the law. The judicial practice proved that for most of the vehicles acquired from EU the delivery was standard, namely intra-Community delivery with reverse charge, the consequence being that when the car is sold in Romania the VAT is collected for the entire value and it must be transferred to the state budget, and yet, through certain fraudulent acts and the falsification of documents, the special VAT regime applies, namely the margin-based VAT and the intermediary company pays VAT only for the difference between the selling and the buying price, not for the entire value of the vehicle.