6431

Authorization procedure and Trade Registry aspects for CAEN 6431

The establishment of an entity carrying out activities classified under CAEN 6431 – Activities of money market investment funds and non-money market investment funds – cannot be achieved simply by registering with the Trade Register (ONRC). In addition to the standard registration with the Trade Register, the investment fund must obtain prior authorization from the Financial Supervisory Authority (ASF). The articles of association are submitted to ONRC together with the authorization certificate issued by ASF. Legal entities that manage funds (investment management companies) must also be authorized. Without this authorization, ONRC will reject the registration. CAEN 6431 is a code not regulated by Law 359/2004 (no sworn declaration regarding the premises for activities with ISU approval is required), but it is strictly regulated specifically by capital market legislation.

Regulatory framework, specific approvals and control institutions

The main normative act is Law 74/2015 on alternative investment fund managers, as well as Government Emergency Ordinance 32/2012 on collective investment undertakings. For money market funds, EU Regulation 2017/1131 applies, transposed by ASF regulations. The entity must have an operating program approved by ASF, comply with minimum capital requirements (e.g., minimum share capital of EUR 125,000 for SAI), and appoint a depositary – a bank or other authorized institution – for asset custody. Control is exercised by ASF, and reporting is monthly, quarterly and annually, according to the accounting regulations applicable to entities supervised by ASF. Credit institutions involved in depositary activities are controlled by the National Bank of Romania (BNR).

Tax management, ANAF audit risk and specific accounting

Investment funds are Romanian legal entities with registered office in Romania and are subject to corporate income tax according to the Fiscal Code. Income from investments (interest, dividends, capital gains) is taxed at the standard rate of 16%. A tax facility exists for alternative investment funds intended for retail investors (FIA): they may apply the corporate tax system with the possibility of deducting legal reserves. Money market funds may benefit from special treatment of interest income if they are actively traded. From a VAT perspective, financial activities (fund management) are exempt from VAT under Article 292 of the Fiscal Code. There is a risk of ANAF audit regarding transfer pricing in transactions with the management company or the depositary, as well as regarding the correctness of the calculation of corporate income tax and reserves. Accounting is kept in accordance with the Accounting Regulations approved by BNR/ASF Order, with a specific chart of accounts. Funds are required to publish semi-annual and annual financial statements, audited by a financial auditor registered with ASF. In case of non-compliance with reporting requirements, ASF may suspend the fund's activity, and ANAF may impose penalties for non-payment of taxes. It is mandatory to declare the tax vector to ANAF within 30 days of registration, specifying CAEN 6431 as the main activity.