In the Official Gazette (Part I) no. 703 of July 15, 2021, the ANAF Order no. 1071 was published for the approval of the Procedure regarding the application of the provisions of article 131 paragraph (1) of Law no. 207/2015 regarding the Fiscal Procedure Code.
Through the document, the procedure is formalized by which the ANAF inspectors will notify the criminal investigation authorities when, during the control actions carried out, they find that crimes have been committed.
Basically, the fiscal inspection can no longer end with a tax decision when the control staff of ANAF identifies possible crimes. In such cases, the inspectors must notify the criminal authorities, according to a procedure recently formalized by ANAF..
The procedure regarding the application of the provisions of article 131 paragraph (1) of Law no. 207/2015 on the Fiscal Procedure Code aims at defining the actions to be performed by the fiscal inspection authorities, in the situation where in a fiscal inspection action findings are made in connection with the commission of certain deeds provided by the criminal law in connection with the means of proof regarding the establishment of the tax base that are the object of the fiscal inspection and for which the provisions of article 132 of the same normative act are applicable.
We mention that article 131 paragraph (1) of the Fiscal Procedure Code stipulates that the result of the fiscal inspection is recorded, in writing, in a fiscal inspection report, in which the findings of the fiscal inspection body from the factual and legal point of view and the consequences are presented. except in cases where findings are made in connection with the commission of acts provided by criminal law in connection with the means of proof regarding the establishment of the tax base that are subject to tax inspection, for which the provisions of Article 132 are applicable.
Until the initiation of the criminal action, the role of the control authorities is to recognize all the characteristics of a crime during a tax inspection, so that as soon as it recognizes a criminal act, to go through the stages of the procedure described in Order 1071/2021. notification of the criminal investigation authorities
In order to be taken into account, any notification must include certain elements, as provided in the Code of Criminal Procedure, in Article 289 and Article 290:
- name, surname, personal numerical code (CNP), quality and domicile of the petitioner
- for legal entities: name, registered office, unique registration code (CUI), fiscal identification code (CIF), registration number in the trade register or registration number in the register of legal entities and bank account,
- indication of the legal or conventional representative,
- description of the deed that forms the object of the complaint, as well as
- indication of the perpetrator and the means of proof, if known.
According to Order 1071/2021, this procedure involves the development of 5 (five) actions, as follows:
- Issuing within a fiscal inspection action, a report, under the conditions provided in article 132 of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions;
In the situation where it is found that there are indications regarding the commission of a crime in connection with factual situations that fall within their competence of finding, the fiscal inspection authorities draw up minutes, which will be submitted to the competent judicial authorities together with the attached documentary materials.
The minutes concluded by the fiscal inspection authorities, under the conditions of article 132 paragraph (2) of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, constitutes a notification act and is the basis for the notification documentation of the criminal investigation authorities
In support of the findings, copies of supporting documents, registers, verification balances, fiscal declarations, situations regarding the ascertained fact and its effects will be attached to the minutes, as the case may be. If the documents or documents are considered fictitious or are suspected of being fictitious, and when there are indications of their modification, theft or destruction by those concerned, the documents or documents are attached in a copy certified by the tax inspection team, to the minutes.
- establishing the taxes, fees, contributions, as the case may be, as well as the taxable periods for which findings were made recorded in the minutes;
The fiscal inspection team will analyze the findings entered in the report concluded under the conditions of article 132 of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, and will establish which are the taxes, fees, contributions, as well as the taxable periods whose tax base is influenced by the findings made.
- drawing up, approving and approving the report for justifying the non-preparation of the fiscal inspection report or for justifying the drawing up of the fiscal inspection report only for certain taxes, duties
The report will include at least the following elements:
– the identification data of the taxpayer at which the fiscal inspection action takes place (name, address of the fiscal domicile, legal representative, fiscal registration code, etc.);
– the number and date of the fiscal inspection notice communicated to the taxpayer;
– date of starting the fiscal inspection;
– taxes, fees, contributions and related taxable periods included in the tax inspection notice communicated to the taxpayer;
– the number and date of the report concluded with the taxpayer in question, under the conditions of the provisions of article 132 of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions;
– the synthesis of the analysis performed according to action 2, from which to result clearly, arguing which are the taxes, fees, contributions and taxable periods approved which are influenced by the findings from the minutes;
– proposals for the completion of the fiscal inspection action, respectively for the elaboration of the fiscal inspection report or for its non-elaboration.
- notification of the taxpayer to whom a tax inspection action was in progress in connection with the non-preparation of the tax inspection report or in connection with the preparation of a tax inspection report only for certain taxes, duties, contributions;
- the registration in the special record of the data and information regarding the taxpayer for which a fiscal inspection action was in progress for which no fiscal inspection report was drawn up or for which a fiscal inspection report was drawn up only for certain taxes, duties, etc. which was the basis of a criminal complaint.
For monitoring, follow-up and ordering of measures, a special record of data and information regarding the taxpayer for which a fiscal inspection action was carried out will be organized, at the level of each territorial fiscal inspection body, for which no inspection report has been drawn up. tax or to which a tax inspection report has been drawn up only for certain taxes, duties and certain taxable periods, as the case may be, from those included in the fiscal inspection notice, fact generated by the conclusion of a report under the conditions of article 132 of Law no. . 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, which was the basis for a criminal complaint. Special registrations can also be organized using electronic means.
The special evidence will include at least the following information:
– the identification data of the taxpayer at which the fiscal inspection action took place (name, address of the fiscal domicile, legal representative, fiscal registration code, etc.);
– the fiscal inspection team that performed the action;
– the number and date of the fiscal inspection notice communicated to the taxpayer;
– number and date of the service order (s);
– date of starting the fiscal inspection;
– taxes, fees, contributions and related taxable periods included in the fiscal inspection notice communicated to the taxpayer;
– the number and date of the report concluded with the taxpayer in question, under the conditions of the provisions of article 132 of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions;
– the number and date of the fiscal inspection report concluded with the taxpayer, as the case may be;
– taxes, fees, contributions and related taxable periods, for which no fiscal inspection report has been drawn up and for which the provisions on suspension will be applicable, under the conditions of article 111 paragraph (2) letter e) of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, of the limitation period of the right of the fiscal body to establish fiscal receivables, provided in article 110 of the same normative act;
– the number and date of the report prepared according to action 3.
According to the published normative act, the procedure is applicable from July 15, 2021.
Legal basis:
– Order ANAF 1071/2021 for the approval of the Procedure regarding the application of the provisions of article 131 paragraph (1) of Law no. 207/2015 regarding the Fiscal Procedure Code;
– Code of Criminal Procedure, with subsequent amendments and completions.