Legal nature of the addiction fund contribution
By Teodora Luca
Mihai Cătălin LUCA Law Office
Although the intention of the legislator has been unquestionable since 2015, in the sense of establishing new obligations on gambling organizers, the purpose of which is to financially support actions to hold the public accountable and to prevent and combat gambling addiction. Fortunately, only since December 2018 has the legal framework been established for this contribution to be effectively collected.
According to the provisions of art. 10 para. 4, 5 and 6 of the Government Emergency Ordinance no. 77/2009:
4) It is established in addition to the O.N.J.N. an activity financed entirely from own revenues in accordance with the provisions of Law no. 500/2002, with subsequent amendments and completions, to promote compliance with the principles and measures regarding socially responsible gambling, as they are regulated by the provisions of art. 2 of the Government Emergency Ordinance no. 20/2013 regarding the establishment, organization and functioning of the National Office for Gambling and for the modification and completion of the Government Emergency Ordinance no. 77/2009 on the organization and operation of gambling, with subsequent amendments and completions. Own revenues consist of the contributions of licensed gambling organizers, with the following annual contributions:
(i) remote gambling organizers licensed in class I – 5,000 euros per year;
(ii) legal entities directly involved in the field of traditional and remote gambling licensed from class II – 1,000 euros per year;
(iii) remote games state monopoly class III – 5,000 euros per year;
(iv) licensed traditional gambling organizers – 1,000 euros per year.
5) The own revenues provided in par. (4) have the legal nature (a) of a budget receivable and are executed according to the provisions of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, based on the notification of O.N.J.N. which is an enforceable title.
6) The term of payment of the amounts provided in par. (4) is December 15 of each year, and the deadline for operators who have obtained a license after this date must be at the time of obtaining the license.
From the content of art. 5, cited above, it follows that the will of the legislator was to treat the right of the collection authority in the manner applicable to budgetary receivables, without this claim being understood as a budgetary receivable.
According to the definition provided by art. 1 para. 2) point 7) of the Fiscal Procedure Code, the budget receivable is the right to collect any amount due to the consolidated general budget, representing the main budget receivable and the ancillary budget receivable, and according to art. 1 para. 2 point 11 of the Fiscal Procedure Code, the main tax claim is the right to collect taxes, fees and social contributions, as well as the right of the taxpayer to refund the amounts paid without being due and to reimburse the amounts due, in the situations and conditions provided by law;
As long as the provisions of art. 10 para. 4 of the Government Emergency Ordinance no. 77/2009 expressly provides that the recipient of the contributions is the National Gambling Office and not the consolidated state budget (own revenues are the contributions of licensed gambling organizers…), it is easy to understand that the intention of the legislator was that to apply the legal regime of budget receivables to contributions, without the contributions being assimilated to tax receivables.
Therefore, although such a claim is to be enforced by tax executors, the amounts collected do not represent revenue from the state budget (but are constituted as ONJN’s own revenue) and therefore do not mean that it is transformed ope legis into a fiscal receivable, but maintains the character of a budgetary receivable arising from other enforceable titles, (respectively the notification issued by ONJN) according to the law, and not of fiscal law.
From the examination of the legal definitions, provided in art. 1 of the Fiscal Procedure Code shows that the tax legislation distinguishes between tax receivables, arising from non-payment of taxes, fees and social contributions, which have a specific regime of finding and attract, as accessories, interest and penalties of delay established ex officio by the fiscal execution body, and the budgetary receivables, which include other types of revenues due to the general consolidated state budget and which allow accessories, but these are established exclusively according to the law based on which the executory title was issued and are disposed by it.
Therefore, the regulation of the contribution, both in terms of the constitution of the main claim, the accessories and the procedure for communication to debtors is carried out under GEO 77/2009 and not under Law 207/2015 on the Fiscal Procedure Code.
According to Annex 1 to the Order of the President of the O.N.J.N. no.35 / 2019 the reference exchange rate used in the calculation of the contribution expressed in euro is determined by converting the amounts based on the exchange rate established on the first working day of October of the previous year, published in the Official Journal of the European Union. This course is used throughout the current year.
The term of payment of the contribution established according to art. 10 para. 4 of GEO 77/2009 is the one provided by the provisions of art. 10 para. 6, respectively: The payment term of the amounts provided in par. (4) is December 15 of each year, and the deadline for operators who have obtained a license after this date must be at the time of obtaining the license.
Although this regulation is express and unequivocal, the payment term provided by the provisions of art. 12-14 of the Procedure (Annex 2 to the Order of the President of ONJN no. 400/2019) is different, being regulated separately for the obligations due from 2020: Starting with 2020, on the occasion of payment at the legal maturity of the license fee corresponding to the following year of the license, the contribution provided in art. 10 para. (4) of the Government Emergency Ordinance no. 77/2009, approved with amendments and completions by Law no. 246/2010, with subsequent amendments and completions, at least 10 days before the expiration of the previous license year.
Even if the term of payment of the contribution is associated with the license to organize the activity, given the different legal nature of the contribution, respectively due to the fact that it is not a tax claim and is not due to the consolidated state budget, its non-payment could have as a consequence the revocation of the license, this situation not being provided by art. 17 para. 2 of the Government Emergency Ordinance no. 77/2009, the legal consequence being the application of delay penalties.
With regard to the applicable accessories (interest and late payment penalties), it should be borne in mind that the accessories related to main budget receivables are calculated according to the law governing the main debit and not under Law 207/2015, the applicability of which is limited to the calculation of ancillary tax claims.
According to the arguments described above, the contribution of gambling organizers is not assimilated to budget receivables except from the perspective of its enforcement by tax executors (otherwise the recipient and beneficiary of the amounts could not be ONJN). Therefore, the accessories are determined, if and insofar as they are established by the law governing the claim, respectively GEO 77/2009.
In view of these circumstances, we consider that, in the event of late payment, the penalties for delay and interest provided for in the Fiscal Code would have been erroneously calculated.
Considering that the Notification regarding the obligation to pay the contribution is from a legal perspective an individual administrative act and not an act of forced execution, the term and the procedure for contesting it are provided by the provisions of Law 554/2004 (formulation of the preliminary complaint, according to art. 7 paragraph 1 of Law 554/2004) and not of Law 207/2015 on the Fiscal Procedure Code.
Only after the initiation of the enforcement procedure, against the enforcement acts drawn up by the tax executors will be applicable the appeal procedure provided by Law 207/2015.
Therefore, in our opinion, the provision in Annex 1 to the Order of the President of ONJN 35/2019 is inaccurate, according to which An appeal may be lodged against this document with the competent court, within 15 days of communication or acknowledgment, in accordance with with the provisions of art. 260 and 261 of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, these terms being specific to the fiscal execution procedure.
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