Entity set up in Romania - DLA Piper Guide to Going Global

Form of entity

Several types of companies may be used as corporate vehicles in Romania. Joint stock companies (societate pe actiuni or JSC) and limited liability companies (societate cu raspundere limitata or LLC) are the most commonly used given their flexible incorporation procedure and limitation of the shareholders' liability.

Joint stock company (JSC)

It is a separate and distinct legal entity. A JSC may be managed by:

1 or more directors (forming a board of directors), with the possibility of management delegation, in the 1-tier system; directors are appointed by the general meeting of shareholders while managers are appointed by the board of directors or
An executive board and a supervisory board in the 2-tier system; members of the executive board are appointed by the supervisory board; members of the supervisory board are appointed by the general meeting of shareholders.

Generally, if a JSC is managed in a 1-tier system, a sole director/board of directors represent(s) the company through its president. Under the 2-tier system, representation power is exercised by members of the executive board.

Special provisions apply in case of public listed companies.

Limited liability company (LLC)

It is a separate and distinct legal entity.

An LLC may be managed by 1 or more directors, appointed by the general meeting of shareholders.

A company is represented by its directors.

Entity set up

Joint stock company (JSC)

Unlimited number of shareholders; minimum number of shareholders is 2
Personal liability of shareholders is limited to their contribution to the share capital; however, in certain situations, their liability may be extended (eg, piercing the corporate veil)
A JSC is registered by default by the Trade Registry as a micro-enterprise and will automatically switch to the corporate income tax regime (ie, taxing the profits) after the level of taxable revenues reaches the threshold of EUR500,000
A JSC may opt to apply the corporate income tax regime since incorporation provided that it fulfills certain conditions in terms of value of the share capital and number of employees
A fiscal registration number is allocated by the Trade Registry at the moment JSC is incorporated; other types of fiscal registrations (eg, for VAT purposes, for social security contributions) should be considered depending on the economic activity to be performed
The fiscal year is generally a calendar year with the possibility to change it with another period, but only if the JSC is subject to corporate income tax regime
Typical charter documents:
- Articles of association
- Resolutions of the competent corporate body (eg, general meeting of shareholders / board of directors) of each founder approving the incorporation of the JSC
- Shareholders' register
Shares can be either common or preferred

Limited liability company (LLC)

Up to 50 shareholders; may be incorporated/owned by a sole shareholder
Personal liability of shareholders is limited to their contribution to the share capital; however, in certain situations, their liability may be extended (eg, piercing the corporate veil)
An LLC is registered by default by the Trade Registry as micro enterprise and will automatically switch to the corporate income tax regime (ie, taxing the profits) after the level of taxable revenues reaches the threshold of EUR500,000.
An LLC may opt to apply the corporate income tax regime since incorporation provided that it fulfills certain conditions in terms of value of share capital and number of employees.
A fiscal registration number is allocated by the Trade Registry at the moment LLC is incorporated; other
types of fiscal registrations (eg, for VAT purposes, social security contributions) should be considered depending on the economic activity to be performed
The fiscal year is generally the calendar year with the possibility to change it with another period, but only if the LLC is subject to the corporate income tax regime
Typical charter documents include:
- Articles of association
- Resolutions of the competent corporate body (eg, general meeting of shareholders / board of directors) of (each) founder approving the incorporation of the LLC
- Shareholders' register
Only 1 class of shares is allowed

Minimum capital requirement

Joint stock company (JSC)

Minimum share capital of RON90,000
Minimum nominal value per share of RON0.1

Limited liability company (LLC)

Minimum share capital – no minimum value
Minimum nominal value per share – no minimum value

Legal liability

Shareholders of a JSC or an LLC are generally not liable for the debts of the company; their liability is limited to their contribution to the share capital of the company; however, in certain situations, their liability may be extended (eg, piercing the corporate veil).

Tax presence

Similar tax and accounting reporting requirements are applicable for both JSCs and LLCs established in Romania. Further to the incorporation, both JSCs and LLCs are in principle subject to the following taxes:

The micro-companies tax: JSCs and LLCs have the option to pay a micro-companies tax of 1 percent (subject to meeting specific criteria, including the obligation to have at least 1 employee and register a level of turnover below EUR0.5 million)s is higher than EUR1 million, JSCs and LLCs are subject to 16 percent profit tax, applied on the fiscal result determined starting from the accounting profits adjusted with fiscal items
Profit tax: the default tax regime for local entities. Under this regime, JSCs and LLCs are subject to 16 percent profit tax, applied on the fiscal result determined starting from the accounting profits adjusted with fiscal items (non-taxable income and/or non-deductible expenses, as the case may be).
Value added tax (VAT): the standard VAT rate in Romania is currently 19 percent. The reduced VAT rates are of 9 percent (eg, for medicines, food and beverages - except alcohol, among others) or 5 percent (eg, for school manuals, books, newspapers and magazines, hotel accommodation and similar accommodation, restaurant and catering services, supplies of social housing including related land, in certain conditions). Registration for VAT purposes is required if the turnover resulting from the economic activity exceeds the threshold of RON300,000 in a calendar year
Local tax: due by companies for assets in their patrimony (ie, for buildings, land and vehicles owned) or taxes on publicity and advertising and outdoor advertising
Withholding tax (WHT): WHT is due on cross-border payment of dividends, interest, royalties, commissions and services. As per the domestic tax legislation, income derived by non-residents from Romania is, as a general rule, subject to 16-percent WHT in Romania. However, such rates can be reduced (even to nil) under the provisions of the EU Directives or double tax treaties entered into by Romania with different countries.
Salary and mandatory social security charges: the existence of employees at the level of the JSC and LLC triggers the obligation to pay salary tax and mandatory social security contributions. A flat income tax rate of 10 percent applies to the income obtained by employees. Moreover, both the employer and the employee are required to contribute to the social security system (ie, 35 percent cumulated contribution to pension and health funds due by employees working in normal conditions and labor insurance contribution of 2.25 percent due by the employer).
Customs duties: applicable if JSC or LLC performs imports of goods from outside the EU to Romania (certain exemptions may apply though).
Accounting requirements: both JSCs and LLCs are required to organize and manage its own accounts based on the Romanian accounting rules.

Incorporation process

Certain documents, such as articles of association, incorporation resolution, statements of shareholder(s) and director(s), must be submitted with the competent Trade Registry.

Business recognition

JSCs and LLCs are well regarded and widely used, as opposed to other types of companies.

Shareholder meeting requirements

JSCs and LLCs are required to hold annual meetings of shareholders to vote on certain items, such as approval of financial statements. In the case of a JSC, general meeting of shareholders can either be ordinary or extraordinary depending on the matter on the agenda.

Board of director meeting requirements

Joint stock company (JSC)

The board of directors or supervisory board is required to meet every 3 months.

Limited liability company (LLC)

Not specified by law. Directors are not required by law to form a board of directors.

Annual company tax returns

The following tax returns are to be submitted both by JSC and LLC:

If the company is subject to corporate income tax regime : (i) Quarterly profit tax returns (ie, for the quarters I, II and III) by the 25th of the first month following the quarter for which the profit tax liability is computed and (ii) annual profit tax return no later than March 25 of the year following the one for which the profits tax is computed if the company is liable for profit tax, provided that the fiscal year coincides with the calendar year. Other corporate income tax compliance regimes apply for companies activating in certain domains (eg, financial industry).
If the company is subject to micro-enterprise tax regime: quarterly micro-company returns by the 25th of the first month following the quarter for which the micro-company liability is computed.
VAT returns (ie, form 300, EC-Sales and Acquisitions List – form 390, Local acquisition/supply of goods/services statement – form 394): By the 25th day of the month following the end of the fiscal period.
Intrastate statements: On a monthly basis for intra-community movements of goods, starting with the month in which the aggregate value of goods acquired/sold from/to other EU member states reaches the thresholds provided by the Romanian legislation (RON900,000 for both acquisitions and supplies).
Payroll statements: On a monthly basis, no later than 25th of the month following the one to which the liabilities are computed. Tax returns for salary tax and related social security contributions (form 112) should be submitted by electronic means.
Financial statements: Annual and final financial statements within 150 days from the end of the financial year; on a bi-annual basis (if specific conditions are fulfilled) and on a quarterly basis (if and when interim distribution of dividends is performed during the year).
Other tax statements (eg, for local taxes, environmental fund contributions), depending on the specificity of the activity performed by the JSC and LLC.

Business registration filing requirements

Joint stock company (JSC)

Initial registration is required, as well as annual filings. All resolutions of the general meetings of shareholders are required to be filed with the Trade Registry.

Limited liability company (LLC)

Initial registration is required, as well as annual filings. Only certain resolutions of the general meetings of shareholders are required to be filed with the Trade Registry.

Business expansion

Joint stock company (JSC)

No need to change as business expands. However, secondary offices may need to be opened.

Limited liability company (LLC)

No need to change as business expands. However, secondary offices may need to be opened. If the number of shareholders becomes higher than 50, the LLC must convert to a JSC. Moreover, irrespective of which type of company we refer to, any business expansion which refers to the establishment of a new business unit, the increase of the production capacity of an existing business unit or the diversification of the production of an existing business unit may amount to a “new investment,” as such is defined in the FDI legislation and, if the relevant criteria are met, may require prior authorization from the Commission for the Assessment of Foreign Direct Investments.

Exit strategy

File dissolution documents with the appropriate Trade Registry.

Annual corporate maintenance requirements

The annual financial statements of the company must be approved by the general meeting of shareholders.

Director / officer requirements

Joint stock company (JSC)

Directors may be either legal entities or individuals. Managers must be individuals.