In the Official Gazette (Part I) no.1272 of 29 December 2022 was published the EMERGENCY ORDINANCE no.188/2022 for amending and supplementing the Law no.207/2015 on the Tax Procedure Code and for amending the EMERGENCY ORDINANCE no.74/2013 on some measures to improve and reorganize the activity of ANAF, as well as for amending and supplementing some normative acts.
The main amendments/completions to the Tax Procedure Code are
- Obligation of the tax authority to make available to the taxpayer the administrative file of the tax audit action:
The tax authority is obliged to make available to the taxpayer/payer subject to a tax audit the administrative file of the tax audit at his/her written request. Where appropriate, the documents/information are anonymised to ensure the confidentiality of personal data and tax secrecy.
The administrative file of the tax audit represents the totality of the documents and information on which the findings of the tax audit authority are based from a factual and legal point of view, as well as those issued in connection with the administration of the means of proof.;
Introduction of new definitions:
- the administrative file of the tax audit action – the totality of the documents and information which form the basis of the findings of the tax audit authority from a factual and legal point of view, as well as those issued in connection with the administration of evidence;
- tax file – the set of documents and information received or prepared, held by the tax authority in connection with the administration of tax claims of a taxpayer/payer.
- Completions to the risk analysis procedure:
The risk analysis is carried out periodically, in which case the tax authority also establishes the taxpayer’s tax risk class/subclass. The tax risk class/subclass shall be communicated to the taxpayer, at his request, by any means of communication that provides proof of receipt of the information, unless there are general interest objectives that justify restricting access to this information.
The above provision shall enter into force on 1 January 2026.
The tax authority may request the presence of the taxpayer/payer at its premises in order to provide information and clarifications necessary to establish his/her real tax situation. Together with this request, when documents/information are required for clarification of the tax situation, the tax authority shall also indicate the documents that the taxpayer/payer is obliged to submit, when they are not held by the tax authority.
- Protocol between local tax authorities and central tax authorities:
The central tax authority is obliged to transmit information on the sources of income of individuals to the local tax authorities . The local tax authorities and the central tax authority conclude the protocol called “Protocol of accession to the services of the PatrimVen information system”, which is transmitted through the Ministry of Finance/ANAF’s own information system..
- Transmission of requests/documents/writings in the procedure of tax control or of dispute resolution, between taxpayers and ANAF authorities:
- In the tax audit or appeal procedure, applications, documents or any other documents may be submitted by taxpayers/payers by electronic means of remote transmission, as appropriate, or by post, with confirmation of receipt, or by e-mail to the e-mail address indicated by the audit or appeal authority or submitted to the registry of the competent tax authority . Similarly, the control or appeal authority may send requests, documents or any other documents by electronic means of remote transmission, either by post, with acknowledgement of receipt, or by e-mail to the e-mail address indicated by the taxpayer/payer.
- Carrying out tax inspection activities:
The tax inspection activity carried out by the central tax authority is organised on the basis of centrally prepared programmes.
The tax inspection shall be carried out exclusively, directly and unrestrictedly by the competent central tax authority or the competent local tax authority .
In the case of claims administered by the central tax authority, the tax inspection authorities are competent to carry out tax inspections throughout the country.
In the case of tax claims administered by the local tax authority, the selection of taxpayers/payers to be subject to tax inspection is made by the competent tax inspection authority, depending on the level of risk.
The level of risk is determined on the basis of risk analysis. In the case of tax claims administered by the central tax authority , the selection of taxpayers/payers for tax inspection action is carried out at the level of the ANAF central office, depending on the level of risk established on the basis of the risk analysis.
By exception, in the case of tax claims administered by the central tax office, taxpayers/payers may be selected randomly for tax inspection. The terms and conditions under which the random selection is carried out shall be established by order of the President of ANAF. In a calendar year, the maximum percentage of taxpayers/plaintiffs selected at random may not exceed 10% of the total number of taxpayers/plaintiffs selected for tax inspection in that year. Exceeding the 10% is a disciplinary offence and the head of the tax inspection structure is obliged to take measures to sanction the guilty persons.
The above provisions enter into force on 1 January 2026.
For taxpayers/payers presumed to be selected for tax inspection, the tax inspection authority shall send them, in writing, a compliance notice on the identified tax risks in order for them to re-examine their tax situation and, where appropriate, to file or correct tax returns.
The notification shall inform the taxpayer/payer that within 30 days from the date of communication of the notification they have the opportunity to file or correct tax returns. Until the expiry of this period, the tax inspection authority shall not take any action to select the taxpayer for tax inspection.
The submission or correction of tax returns by the taxpayer/payer does not prevent the selection for tax inspection, but only after the expiry of the above deadline.
After the expiry of the above-mentioned deadline, taxpayers/plaintiffs with a high tax risk who have not remedied the tax risks for which they have been notified are subject to mandatory tax inspection or documentary verification.
- Notice, date of commencement and conduct of tax inspection – additions:
The tax inspection notice will also contain the possibility to submit or correct the tax return for the periods and tax claims that will be subject to tax inspection, until the date of the start of the tax inspection.
The starting date of the tax inspection shall be the date mentioned in the single control register if it is mandatory and the inspection is carried out in the taxpayer’s/payer’s premises.
In the case of a taxpayer/payer who does not keep or does not present the single control register to the tax inspection authority , this date shall be recorded in a report. The report shall be signed by the tax inspection authority and by the taxpayer/payer and shall be recorded in the taxpayer’s/payer’s register whenever such a register exists.
If the tax inspection takes place at the taxpayer’s/payer’s premises and cannot start within 5 working days from the date specified in the notice, the taxpayer/payer shall be informed in writing of the new starting date of the tax inspection.
If the tax inspection is carried out at the tax inspection authority ‘s premises, the starting date of the tax inspection shall be the date specified in the notice. If the tax inspection cannot start on the date specified in the tax inspection notice, the taxpayer/payer shall be informed in writing of the new starting date of the tax inspection at the latest on the date of its completion.
According to the Tax Procedure Code (CPF), the tax inspection is usually carried out at the tax inspection office.
On the initiative of the tax inspection authority or at the reasoned request of the taxpayer/payer, the tax inspection may be carried out at the taxpayer/payer’s premises.
The taxpayer’s/payer’s request shall be settled within a maximum of 3 days after registration.
If the request is not resolved within 3 days, it shall be deemed to have been tacitly accepted. The change of the place of the tax inspection can also be made during the tax inspection. The taxpayer/taxpayer must provide a suitable space and the necessary logistics for the tax inspection. If there is no or no suitable working space available for the tax inspection, the inspection activity shall be carried out at the tax authority’s premises or at any other place agreed with the taxpayer/payer.
If the tax inspection is carried out at the taxpayer’s/payer’s premises, it is usually carried out during the taxpayer’s/payer’s working hours.
The tax inspection may also be carried out outside the taxpayer’s/payer’s working hours, with the taxpayer’s/payer’s written consent and the approval of the head of the tax inspection authority .
If the tax inspection is carried out at the premises of the tax office, it shall be carried out during the working hours of the tax office. The tax inspection may also be carried out outside the working hours of the tax inspection authority , if the presence of the taxpayer/payer is not required, with the approval of the head of the tax inspection authority
Legal basis:
– Fiscal Procedure Code (approved by Law no. 207/2015, published in MO no. 547 of 23.07.2015), with subsequent changes and additions;
– EMERGENCY ORDINANCE 188/2022 for the amendment and completion of Law no. 207/2015 on the Fiscal Procedure Code and for the amendment of the Government’s Emergency Ordinance no. 74/2013 regarding some measures to improve and reorganize the activity of the National Agency for Fiscal Administration, as well as to modify and supplement some normative acts.