Currently there is a rise in the number of tax audits performed by the Romanian national tax authority (ANAF) for corporate tax, VAT and in particular market oriented transfer prices. A lot of these audits lead to the levying of additional tax duties; these result from a reassessment of transfer prices in between related parties or in the context of expenses for purchased services.
The tax payer has the following appeal possibilities against the tax report.
The tax payer has the right, within five days of receiving a provisional tax audit report, to submit his point of view regarding the findings of the audit.
The statement is then evaluated by the tax auditor responsible. If this does not lead to a change of the findings, but the tax payer still believes that these are inaccurate, the next step is to raise an objection within 45 days from receipt, in accordance with article 270 code of fiscal legal procedures. Tax objections can only be raised against amounts and measures included in the notification. The wording of the objection by the tax payer should be very precise as all arguments and evidence, which are to be used as basis of the objection, have to be included in this objection.
If the objection, after consideration by the responsible ANAF department, is partially or completely dismissed, the next step for the tax payer is a lawsuit.
Please note that in a trial only the arguments and evidence which are included in the initial objection are recognised. This emphasises the paramount importance of precise and coherent wording and a complete account of argument and evidence in the initial statement.
Suspension of execution
According to Article 278-2 of the fiscal legal procedure code, the objection against the tax statement does not influence the deadline for payments demanded. Even if the tax payer makes an objection against the tax statement within the specified time, the fixed amounts originally demanded still have to be paid by the due dates; if not, the tax authorities have the right to issue an execution deed. To avoid this, the tax payer must make a request to suspend execution in accordance with Art. 278. In this process, a payment is deposited with the competent court; however, there is no guarantee that suspension will be approved.
To make a request to suspend execution, the taxpayer must already have objected to the tax statement. This means that in practice there would have to be a significant shortening of the 45-day deadline.
The taxpayer has a chance (according to Art. 281-5) to annul the tax statement at the administrative court if the responsible department of ANAF has not responded to the objection within six months. For calculation of the six-month limit, suspended working times have to be ignored.
Please note that the taxpayer must pay incidental costs like default interest and late payment fines, even though they are not mentioned explicitly in the tax statement or inspection protocol.
Due to the rising number of tax audits, the tax payer should be aware of all possibilities for a (justified) objection against the audit report. This includes the submission of a point of view regarding the provisional audit report, the objection against this report and subsequent initiation of legal action. The tax payer should also make use of the possibility to suspend execution, especially for higher amounts.
Crucial factors in exercising these rights are documentation of limitation periods in exercising remedies, and the requirement to include all arguments and evidence in the initial objection as once court proceedings have begun it is not possible to add anything. Given the complexity of the process, it is advisable to seek professional support.