RF-1199

RF-1199 – Norwegian tax penalties may be illegal

EU resident enterprises doing business in Norway should claim refund of RF-1199 late filing penalty charges. It is our view that the obligation to file the RF-1199 form is discriminatory and Norway is likely in breach with EU law.

1) Introduction – the RF-1199 reports

RF-1199_constructionIn order for Norwegian tax authorities to stay informed of foreign companies and employees working in Norway, there is an obligation to report the use of non-Norwegian contractors and subcontractors and their employees on a form called “RF-1199”. The obligation to file this form rests with the Norwegian principal or contractor as well as the non-Norwegian contractor or subcontractor.

Failure to file the RF-1199 form may result in severe late filing penalties. The maximum penalty is NOK 75 000 per contractor or contract and NOK 15 000 per employee, and as such the total penalty charge can be substantial.

2) The Norwegian reporting regime is likely in conflict with EU rules

Norway is a member of the European Economic Area (“EEA”) Agreement meaning that Norway must adhere to the fundamental principles of EU law, including the “four freedoms” i.e. unrestricted cross-border movement of goods, capital, services and persons. Consequently, Norway may not, in any way, discriminate EU contractors compared with Norwegian contractors.

The RF-1199-reporting regime does not apply to contracts awarded to Norwegian contractors. Thus, in our view it is obvious that EU contractors are discriminated by this reporting regime, and therefore the regime should most likely be regarded as illegal.

In April 2015 Visma Advokater therefore filed a complaint to EFTA Surveillance Authority (ESA). In a preliminary assessment of 13 January 2016, ESA concluded that the RF-1199 rules are contrary to the EEA-agreement.

However, the Norwegian Ministry of Finance keeps defending the rules while giving notice that they will consider to ease the reporting obligations.

3) Repayment of RF-1199 penalties

We cannot expect that the Ministry of Finance will give up easily, and it may therefore be some time before we have the final answer.

RF-1199_claimESAs view is well reasoned, and if this conclusion is sustained, the RF-1199-penalties should be deemed illegal. Norway will then have to repay these penalties, but most probably, this will be done based on precise claims only. Therefore, it is important that those who have been hit by such penalties claim their rights.

In other EEA matters, we have experienced that the State will invoke the statutory limitation period of three years.

Our recommendation is therefore that those who have paid the RF-1199 fee already now should try to secure the refund claim by taking the necessary legal action in order to prevent obsolescence.

 

Please contact attorney Martin Wikborg +47 98 20 62 42 or email martin.wikborg@visma.com

 

The law firm Visma Advokater has offices in Oslo, Kristiansand, Stavanger, Bergen and Trondheim. We are more than 35 professionals with extensive experience in corporate law – including TAX and VAT, labour law, public procurement, company law and contract law. Our lawyers are happy to assist you with any of the above subjects. Please do not hesitate to contact us should you have any questions.

Visit one of the following pages for more information on doing business in Norway:

Establish a business in Norway

Tax in Norway

VAT in Norway

Work in Norway

Expats

Labour law

Legal Assistance

Accounting in Norway

Payroll in Norway

Tax return

Martin is a lawyer and partner in Visma Advokater and is a specialist on tax and corporate law. He has thorough knowledge in the field after working for more than 25 years i.a. with the Norwegian Ministry of Finance and as a tax partner of Ernst & Young. Martin has advised a large number of Norwegian and multinational corporations on basically all aspects of Norwegian international tax matters, e.g. permanent establishment, transfer pricing, repatriation of profits, reorganizations, merger & acquisition and expatriate taxation.
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