The Fiscal Code and the Fiscal Procedure Code – massive amendments adopted by the Chamber of Deputies

The two bills bring a series of modifications regarding the Fiscal Code and the Fiscal Procedure Code. In what concerns the fiscal procedure, the amendments aim at granting tax payers a more efficient legislative framework in respect of settlement of administrative complaints, as the newly adopted provisions might lead to a fairer settlement of the dispute even within the administrative stage. Another welcomed amendment refers to the regulation of the fiscal consolidation in the field of profit tax, such legal provisions granting the option of taxation at the level of a fiscal group, as this concept is defined through the same newly enacted provisions. It is also eliminated the possibility to have in parallel a criminal investigation and an ongoing tax audit.

 The Fiscal Code

  • Introduction of a new chapter on rules regarding tax consolidation in the area of profit taxation. These new legal provisions regulate the taxation of the fiscal group, whose definition is also found in the newly introduced provisions. 
  • Additional provisions related to the concept of “place of actual run of business” as regulated by art. 8 of Law no. 227/2015 regarding the Fiscal Code, in respect of non-resident legal entities registered within a state with whom Romania concluded a Convention for the avoidance of double taxation, according to the legislation of the state, but which are controlled and administered from Romania.

The Fiscal Procedure Code

  • Specific stipulations in the sense that natural persons who independently carry on economic activities shall be liable, in subsidiary, also with the assets belonging to their personal patrimony, should the assets pertaining to their professional patrimony be insufficient within enforcement proceedings aimed at fully recover fiscal debts related to the exercise of their activity. Previously, such provisions were specifically regulated only in respect of natural persons acting within liberal professions (e.g., lawyers, public notaries etc). 
  • Regulation of certain specific situations based on which the taxpayer is entitled to file a reexamination request against the administrative decision solving a complaint, as a preliminary stage to initiation of judicial proceedings ( for instance, if prior or after the issuance of the decision by the department for settlement of administrative complaints, the High Court of Cassation and Justice issues a court ruling on the clarification of certain legal issues or within a recourse in the interest of law, and such ruling dictates a specific jurisprudence for the legal issues under dispute, which is different from the one contained in the decision solving the complaint). 
  • Introduction of additional nullity cases of the fiscal administrative deed – for instance, if the fiscal authority does not observe the recitals of the decision settling the complaint, in the situation where a new administrative deed is issued on basis of art. 279 para. (3) of the Fiscal Procedure Code.
  • The settlement of administrative complaints has been delegated towards the Ministry of Public Finances, with the effect that the departments for settlement of complaints which exist within ANAF shall be taken over within the MPF. Such modification aims at ensuring an increased impartiality within the settlement process, given that, in practice, a significant percentage of administrative complaints filed by tax payer against fiscal-administrative deeds are dismissed by the competent departments within ANAF, based on a motivation which is usually a repetition of the allegations contained within the challenged deeds.
  • Removal of fiscal authorities’ right to issue a tax report and a subsequent tax decision in the cases where, on the occasion of a tax control, it is ascertained that there are reasonable suspicions regarding the perpetration of a criminal offence in relation to the evidence related to the establishment of the taxable base. In such case, the fiscal authorities are obliged to draft minutes for the notification of criminal bodies, without being further entitled to issue a tax report for the amounts subject to the criminal notification. Similar provisions have been introduced also for the case when the suspicions related to perpetration of a criminal offence are ascertained within verification procedures on the personal fiscal status of a taxpayer.

The above-mentioned amendments shall enter into force once they are promulgated by the Romanian President and published in the Official Gazette.

 

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