GOVERNMENT ORDINANCE No 92/2003
regarding the Fiscal Procedure Code (Law No. 571/2003),
republished
Published
in the “Monitorul
Oficial”, Part I, No. 560 of June 24, 2004
TITLE I
General provisions
CHAPTER I
Scope of application of the Fiscal Procedure
Code
Art. 1 Scope of application of the
Fiscal Procedure Code
(1) This code regulates rights and
obligations of the parties within the fiscal and legal relations regarding the
administration of taxes and fees payable to the State and local budgets as
provided by the Fiscal Code.
(2) This code is also to apply to
the administration of customs rights, as well as to the administration of
obligations that result from contributions, fines and other amounts which are
revenues to the general consolidated budget by law, unless otherwise provided
by law.
(3) Administration of taxes, fees,
contributions and other amounts owed to the general consolidated budget means
the whole of activities that are carried out by fiscal bodies in connection to:
a) fiscal registration;
b) declaration, assessment, audit
and collection of taxes, fees, contributions and other amounts owed to the
general consolidated budget;
c) solution of appeals against fiscal
administrative acts.
Art. 2 The relation of the Fiscal
Procedure Code with other normative acts
(1) The administration of taxes,
fees, contributions and other amounts owed to the general consolidated budget
as provided in Art. 1 is to be enforced according to the provisions of the
Fiscal Procedure Code, the Fiscal Code and other regulations provided for their
application.
(2) This Code is to constitute the
common law procedure for the administration of taxes, fees, contributions and
other amounts owed to the general consolidated budget.
(3) In cases that are not provided
in this Code, provisions of the Civil Procedure Code are to apply.
Art. 3 Modification and completion
of the Fiscal Procedure Code.
(1) This code is to be modified and
completed only by law, enacted, as a rule, 6 months before the date of the
entry into force of such law.
(2) Any modification or completion
of this code is to enter into as of the first day of the year following the
year when such modification or completion was adopted by law.
Art. 4 Operation of the Central
Fiscal Committee
The Central Fiscal Committee
established according to Art. 6 in Law no. 571/2003 regarding the Fiscal Code
has responsibilities of elaboration of decisions as regards the consistent
application of this code.
CHAPTER II
General principles of conduct regarding the
administration of taxes, fees, contributions and other amounts owed to the
general consolidated budget.
Art. 5 Consistent application of legislation
The fiscal body is obliged to apply consistently the provisions of
fiscal legislation in the territory of Romania, pursuing the proper assessment
of taxes, fees, contributions and other amounts owed to the general
consolidated budget.
Art. 6 Exercising the right to assess
Within the limits of its powers and competences, the fiscal body is to be entitled to assess the relevance of tax states of fact and to adopt the solution admitted by law, grounded on the complete ascertainment of all relevant circumstances in question.
Art. 7 Active role
(1) The fiscal body is to notify
the taxpayer about his/her rights and obligations during the procedure carried
on according to fiscal law.
(2) The fiscal body is entitled to
examine ex officio the actual state of fact, to obtain and use all information
and documents that are necessary for a correct assessment of the taxpayer’s tax
state of fact. The analysis performed by the fiscal bodies is to identify and
consider all relevant circumstances of each case.
(3) The fiscal body has the
obligation to examine the state of fact of an objective manner and to guide
taxpayers as regards the submission of declarations and other documents for the
correction of declarations or documents, whenever necessary.
(4) The fiscal body is to decide
upon the manner and the amount of examinations depending on each separate case
and within the limits provided by law.
(5) The fiscal body is to guide the
taxpayers in the application of provisions of fiscal legislation. Assistance is
to be provided either upon the taxpayers’ request or upon the initiative of
fiscal body.
Art. 8 Official language used in
the tax administration
(1) The Romanian language is to be
the official language used in the tax administration.
(2) If claims, justifying
documents, certificates or other documents in a foreign language are submitted
to the fiscal bodies, then fiscal bodies are to require that such documents are
accompanied by translations in Romanian language, certified by authorised
translators.
(3) Legal provisions as regards the
use of languages of national minorities are to apply adequately.
Art. 9 The right to hearing
(1) Before making a decision, the
fiscal body is obliged to ensure the taxpayer the possibility to show
his/herpoint of view as regards facts and circumstances that are relevant in
making such decision.
(2) The
fiscal body is not obliged to apply the provisions under par. (1) in the
following cases:
a) when a delay in making such
decision endangers the assessment of the real tax status as regards the
fulfilment of the taxpayer’s obligations or taking other measures as provided
by law;
b) when the state of facts
presented is to insignificantly modify in terms of the amount of tax receivables;
c) when accepting the information
provided by the taxpayer in a declaration or an application;
d) when forced execution actions are to be taken.
Art. 10 Obligation to co-operate
(1) The taxpayer is obliged to
co-operate with fiscal bodies in order to assess the tax state of fact by
presenting the facts known by him, completely, according to reality and by
indicating the justifying means as known by him/her.
(2) The taxpayers are obliged to
take measures in order to provide all necessary proofing means by using all
legal and effective possibilities that are available to him/her.
Art. 11 Tax secret
(1) Civil servants within the
fiscal body, including the persons that are no longer in this capacity, are
obliged, under the law, to keep secret the information they hold as a result of
exercising their job duties.
(2)
Information on taxes, fees, contributions and other amounts owed to the general
consolidated budget may only be transmitted to the following:
a) public authorities, for purposes of carrying out obligations as
provided by law;
b) fiscal bodies in other
countries, under conditions of reciprocity, based on conventions;
c) competent judicial authorities,
as provided by law;
d) in other cases as provided by law.
(3) The authority that receives fiscal
information is obliged to keep secret such information.
(4) The transmission of fiscal
information in other cases than those under par. (2) is allowed only after
ensuring that no identity of any individual or legal person is thus disclosed.
(5) Failure to comply with the
obligation to keep the tax secret is to trigger legal liability by law.
Art. 12 Good faith
The relationships between taxpayers
and fiscal bodies are to be based on good faith in order to satisfy the law
requirements.
CHAPTER III
Application of fiscal legislation provisions
Art. 13 Interpretation of the law
The interpretation of fiscal
regulations must observe the lawmaker’s will as expressed in law.
Art. 14 Economic criteria
Incomes, other benefits and
patrimonial values are subject to fiscal law irrespective if they are obtained
from activities which comply or not with requirements of other legal
provisions..
Art. 15 Avoidance of fiscal law
(1) In case that, by avoiding the
purpose of fiscal law, the fiscal obligation was not assesed or compared to the
real taxation base, the obligation due and the corresponding tax receivable are
to be those legally assessed.
(2) Provisions in Art. 23 are to
apply to cases provided in par. (1).
CHAPTER IV
Fiscal legal relation
Art. 16 Content of relation of
fiscal procedural law
The relation of fiscal procedural
law includes the parties rights and obligations, according to law, for the
fulfilment of modalities provided for the determination, exercise and cease of
rights and obligations of the parties as derived from the relation of fiscal
material law.
Art. 17 Subjects to fiscal legal
relation
(1) Subjects to the fiscal legal
relation are the state, the territorial administrative units, the taxpayer as
well as other persons that acquire rights and obligations within this relation.
(2) A taxpayer is any
individual or legal person or any other entity without legal personality that
owes taxes, fees, contributions and other amounts to the general consolidated
budget, under law conditions.
(3) The state is represented by the
Ministry of Public Finance through the National Agency for Tax Administration
and its territorial units.
(4) Territorial
administrative units are represented by authorities of local public
administration as well as by specialist departments thereof, within the limit
of competences delegated by such authorities.
(5) The National Agency of Tax
Adminisrtation, its territorial units as well as the specialist departments of
authorities of local public administration are hereinafter called fiscal
bodies.
Art. 18 Empowered persons
(1) The taxpayer may be represented
by an empowered person in the relations with fiscal bodies. The content and the
limitation of the representation are to be as included in the power of attorney
or as provided by law, as the case may be.
(2) The empowered person is obliged
to register at the fiscal body the power of attorney in authentical form, in
writing and under the legal conditions. The revocation of the empowerment
becomes effective with the fiscal body as of the registration date of the
revocation document.
(3) In case taxpayers are represented by a
lawyer in the relation with fiscal bodies, then the form and the content of the
proxy are those as provided by legal provisions as regards the organization and
exercise of the profession of lawyer.
(4) The taxpayer that is not
fiscally domiciled in Romania and that is obliged to submit declarations to
fiscal bodies obliged to appoint an empowered person whose fiscal domicile is
in Romania, in order to fulfil his/her obligations to the fiscal body.
(5) Provisions of this article are
also applicable to fiscal representatives appointed according to the Fiscal
Code, unless the law provides differently.
Art. 19 Appointment of a fiscal
custodian
(1) Unless there is an empowered
person appointed in compliance with Art. 18, the fiscal body is to request the
competent court to appoint a fiscal custodian for an absent taxpayer whose
fiscal domicile is unknown or who, due to illness, infirmity, old age or handicap
of any kind cannot personally exercise or fulfil the rights and obligations
under the law.
(2) For his/her activity, the
fiscal custodian is to be remunerated according to the court decision, and all
expenses related to such representation are to be covered by the represented
person.
Art. 20 Obligations of legal
representatives
(1) Legal representatives of
individuals and legal persons, as well as representatives of associations
without legal personality are obliged to fulfil the tax obligations of represented
persons, on their behalf and from their fortune.
(2) In case that, due to any
reason, tax obligations of associations without legal personality are not
fulfilled as provided in par. (1), then partners are to be jointly liable for
their fulfilment.
TITLE II
General provisions regarding the relation of
material fiscal law
CHAPTER I
General provisions
Art. 21 Tax receivables
(1) Tax receivables are patrimonial
rights that result from relations of material fiscal law under the law.
(2) Both the content and the amount
of tax receivables that are determined rights result from relations under par.
(1), which consist of the following:
a) the right to collect taxes,
fees, contributions and other amounts that are revenues to the general consolidated
budget,the right to the refund of the value-added tax, the right to the refund
of taxes, fees, contributions and other amounts that are revenues to the
general consolidated budget, according to par. (4), hereinafter called main
tax receivables;
b) the right to collect late
payment interest and penalties under the law, hereinafter called ancillary
tax receivables.
(3) In cases as provided by law,
the fiscal body is to be entitled to request the settlement of the tax
receivable by the person in charge to pay such receivable instead of the
debtor.
(4) To the extent that the payment
of amounts of taxes, fees, contributions and other amounts that are revenues to
the general consolidated budget is found as lacking legal grounds, the person
who made such payment is entitled to the refund of such amount.
Art. 22 Tax obligations
For purposes of this Code, tax
obligations are to have the following meanings:
a) the obligation to declare
taxable goods and incomes or, as the case may be, taxes, fees, contributions
and other amounts that are revenues to the general consolidated budget;
b) the obligation to compute and
record in accounting and fiscal books taxes, fees, contributions and other
amounts that are revenues to the general consolidated budget;
c) the obligation to pay taxes,
fees, contributions and other amounts that are revenues to the general
consolidated budget within the legal deadlines;
d) the obligation to pay late
payment interest and penalties related to taxes, fees, contributions and other
amounts that are revenues to the general consolidated budget, hereinafter
called ancillary payment obligations;
e) the obligation to compute,
withhold and record in accounting books and payrolls taxes and
contributionsrealised by withholding, within the legal deadlines;
f) any other obligations of
taxpayers, individuals or legal persons, in the application of fiscal laws.
Art. 23 Arising tax receivables and
obligations
(1) Unless otherwise provided by
law, the right of the tax receivable and the related tax obligation are to
arise upon the constitution of the taxation base generating thereof, by law.
(2) The right of the fiscal body to determine
and assess the tax obligation due is to arise according to par. (1).
Art. 24 Settlement of tax
receivables
Tax receivables are to be settled by
collection, offset, forced execution, cancellation, statute of limitation and
by other means as provided by law.
Art. 25 Creditors and debtors
(1) In the relations of material
fiscal law, creditors are defined as persons holding certain rights of tax
receivables as provided in Art. 21, while debtors are those persons that by law
have the related obligation to pay such rights.
(2) In case the debtor failed to
satisfy the payment obligation, the following are to become debtors by law:
a) the heir that accepted the
succession of the taxpayer that is a debtor;
b) the person that takes over,
either fully or partially, the rights and obligations of the debtor subject to
division, merger or judicial reorganisation, as the case may be;
c) the person whose liability was
determined according to legal provisions regarding bankruptcy;
d) the person that takes over the
debtor’s payment obligation through a payment commitment or through another act
concluded in an authentic form, by ensuring a real guarantee as regards the
payment obligation.
e) other persons as provided by
law.
Art. 26 Payer
(1) Payer
of the tax obligation is to be the debtor or the person who, on behalf of the
debtor, by law, is obliged to pay or withhold and pay, as the case may be,
taxes, fees, contributions and other amounts owed to the general consolidated
budget.
(2) For legal persons with location
in Romania, that have secondary locations, the payer of tax obligations is to
be the legal person, except for the tax on salary income, for which the tax
payment is made by law, by the secondary locations of the legal person.
Art. 27 Joint liability
(1) For outstanding payment
obligations of the debtor that was declared insolvent under the conditions of
this Code, the following persons are to be jointly liable with such debtor:
a) individuals or legal persons
that, during the 3 year period prior to the date of the declaration of
insolvency, in bad faith, acquire goods, by any means, from debtors that thus
causes insolvency;
b) administrators, associates,
shareholders and any other persons that caused insolvency to the debtor that is
a legal person by disposing of or by hiding in bad faith, in any manner,
movable or immovable goods in his/her ownership.
(2) The liability of associates and
shareholders in trade companies that are debtors is to be determined according
to Company Law no. 31/1990, republished, with further modifications and
completions.
Art. 28 Special provisions
regarding determination of liability
(1) The liability of persons under
Art. 27 is to be determined according to the provisions of this article.
(2) For
the purpose provided in par. (1), the fiscal body is to prepare a decision to
include the reasons de facto and de iure why the liability of the person in
question is engaged. The decision is to be submitted for approval to the
management of the fiscal body.
(3) The decision approved according
to par. (2) is to be a receivable title regarding the payment obligation of the
person responsible according to Art. 27 and is to include, beside the elements
in Art. 42 par. (2), the following:
a) the fiscal identification code
of the person that is obliged to pay the obligation of the main debtor, as well
as any other identification data;
b) the name and first name or the
company name of the main debtor; the fiscal identification code; his/her
residence or location, as well as any other identification data;
c) the amount and the nature of
amounts due;
d) the deadline within which the
liable person must pay the obligation of the main debtor;
e) the legal grounds and actual
reasons for the commitment of liability.
(4) The liability is to be
determined both for the main tax obligation and for its ancillary tax
obligations.
(5) The receivable title in par.
(3) is to be communicated to the person obliged to pay by specifying that such
person is to make the payment within the determined deadline.
(6) The receivable title
communicated according to par. (5) can be contested in compliance with law.
Art. 29 Rights and liabilities of
heirs
(1) Rights and obligations derived
from the fiscal legal relation are to be taken over by the heirs of the debtor,
under the conditions of common law.
(2) Provisions of par. (1) are not
to apply in the case of payment obligations of amounts of fines applied to the
debtor that is an individual, by law.
Art. 30 Provisions regarding the
transfer of taxpayers’ tax receivables
(1) Main or ancillary tax
receivables regarding taxpayers’ reimbursement or refund rights, as well as
amounts intended for the guarantee of the execution of a tax obligation can be
transferred only after their determination by law.
(2) The transfer is to become
effective for the competent fiscal body only as of the date when such body was
notified on the transfer.
(3) The termination of the transfer
or the ascertainment of its severance subsequent to the settlement of the tax
obligation is not to be opposable to the fiscal body.
CHAPTER II
Fiscal domicile
Art. 31 Fiscal domicile
(1) In
the case of fiscal receivables that are administered by the Ministry of Public
Finance through the National Agency for Tax Administration, fiscal domicile is
to have the following meanings:
a) for individuals, the address of domicile, by
law, or the address where they actually live, if such address differs from the
domicile one;
b) for legal persons, the
registered location or the place where the administration and the actual
management of business are carried out, unless carried out at the declared
registered location;
c) for associations or other
entities without legal personality, the address of the person representing the
association or the entity, and in the absence of such a person, the address of
the fiscal domicile of any of the partners.
(2) For purposes of par. (1), letter
a), the address where they actually live means the address of the residence
that a person uses on a continuous basis fro more than 183 days in a calendar
year, short-term interruptions being neglected. If the purpose of the stay is
exclusively a visit, a leave, a treatment or other similar personal purposes
and does not exceed a one-year period, such residence is not to be considered
the address where such person actually lives.
(3) In case the fiscal domicile
cannot be determined based on par. (1), letters b) and c), the fiscal domicile
is to be the place where the majority of the assets are located
(4) In the case of other tax
receivables to the general consolidated budget, the fiscal domicile is to be
considered the domicile regulated upon according to common law or the
registered location by law.
TITLE III
General procedural provisions
CHAPTERI
Competence of the fiscal body
Art. 32 General competence
(1) Fiscal bodies have a general
competence as regards the administration of tax receivables, carrying out audit
and the issuance of application norms of legal provisions on fiscal matters.
(2) In case of income tax, an
additional special administration competence can be established by a Government
decision.
(3) Taxes, fees and other amounts
payable in customs by law are to be administered by the customs bodies.
Art. 33 Territorial competence
(1) For the administration of
taxes, fees, contributions and other amounts owed to the general consolidated
budget, the competence is to stay with the fiscal bodies within whose
territorial jurisdiction the fiscal domicile of the taxpayer or the income
payer is located, in case of taxes and contributions realised by withholding,
under the law.
(2) In case of non-resident
taxpayers that carry out activities within the territory of Romania through a
permanent establishment, the competence is to stay with the fiscal body within
whose jurisdiction the turnover is realised, either wholly or most of it.
(3) The competence for the
administration of taxes, fees, contributions and other amounts owed to the
general consolidated budget, that are payable by large taxpayers can be
determined in charge of other fiscal bodies, by an order of the Minister of
Public Finance.
Art. 34 The competence in case of
secondary locations
In case the taxpayer has by law
payment obligations for secondary locations, then the territorial competence
for the administration thereof is to stay with the fiscal body within whose
territorial jurisdiction such secondary locations are placed.
Art. 35 Territorial competence of
specialist departments of authorities of local public administration
Specialist departments of
authorities of local public administration are to be competent for the
administration of taxes, fees and other amounts owed to local budgets of
territorial administrative units.
Art. 36 Special competence
(1) In case the taxpayer has no
fiscal domicile, the territorial competence is to stay with the fiscal body
within whose jurisdiction the act or fact that is subject to legal fiscal
provisions is ascertained.
(2) Provisions in par. (1) are also
to apply to legal emergency measures required in cases of disappearance of
identification elements of the actual taxation base, as well as in case of
forced execution.
Art. 37 Conflict of competence
(1) A conflict of competence is
when two or more than two tax bodies declare that they are both of them either
competent or incompetent. In this case, the fiscal body that vested itself
competent the first or declared itself incompetent the last is to continue the
undergoing procedure and is to apply to the common higher hierarchical body to
decide on the conflict.
(2) In case the fiscal bodies
between which the conflict of competence occurs are not subordinated to a
common higher hierarchical body, the conflict of competence arisen is to be
solved by the Central Fiscal Committee within the Ministry of Public Finance.
(3) In the case of local budgets,
the Central Fiscal Committee is to be completed by a representative of the
Association of Communes in Romania, the Association of Towns in Romania, the
Association of Municipalities in Romania, the National Union of County Councils
in Romania and the Ministry of Administration and Home Affairs.
Art. 38 Agreement on competence
Upon the approval of the fiscal
body that according to this Code holds the territorial competence, as well as
upon the approval of the taxpayer in question, another fiscal body may take
over the activity of administration of such taxpayer.
Art. 39 Conflict of interest
The civil servant within the fiscal
body that is involved in an administration procedure is in a conflict of
interest if:
a) within such procedure, such
civil servant is a taxpayer, a spouse of a taxpayer, a relative up to the third
degree inclusively of the taxpayer, or he/she is a representative of an
empowered person of such taxpayer;
b) within such procedure he/shemay
acquire a benefit or suffer a direct disadvantage;
c) there is a conflict between
him/her, the spouse, his/her relatives up to the 3rd degree inclusively
and one of the parties or the spouse, relatives of the party up to the 3rd
degree inclusively;
d) in other cases as provided by
law.
Art. 40 Refraining and challenge
(1) The civil servant that is aware
that he is under one of the cases provided in Art. 39, is obliged to inform the
head of the fiscal body and to refrain from carrying out the procedure.
(2) In case the conflict of
interest refers to the head of the fiscal body, such head is obliged to inform
the higher hierarchical body.
(3) Refraining is to be proposed by
the civil servant and is to be decided immediately by the head of such fiscal
body or the higher hierarchical body.
(4) The taxpayer involved in the
procedure being carried out may apply for the challenge of the civil servant
that is under a conflict of interest.
(5) The challenge of the civil
servant is to be immediately decided upon by the head of the fiscal body or the
higher hierarchical body. The decision that rejects an application for
challenge may be contested at the competent court. The application for
challenge does not suspend the administrative procedure being carried out.
CHAPTER II
Documents issued by fiscal bodies
Art. 41 Notion of fiscal
administrative act
For purposes of this Code, fiscal
administrative act is to be the document issued by the competent fiscal
body for the application of the legislation regarding the assessment, the
modification or the settlement of tax rights and obligations.
Art. 42 Content and motivation of
the fiscal administrative act
(1) The fiscal administrative act
is to be issued only in writing.
(2) The fiscal administrative act
is to include as follows:
a) the name of the issuing fiscal
body;
b) the date of issuance and entry
into;
c) identification data of the
taxpayer or the person empowered by the taxpayer, as the case may be;
d) the subject to the fiscal
administrative act;
e) reasons de facto;
f) legal grounds;
g) the name and the signature
of the persons empowered of the fiscal body, by law;
h) the stamp of the issuing
fiscal body;
i) the possibility to be
contested, the appeal submission deadline and the fiscal body where the appeal
is to be submitted;
j) specifications regarding the
taxpayer’s hearing.
(3) The
fiscal administrative act issued in compliance with par. (2) through
information technology means is to be still valid, even if it does not bear the
signature of empowered persons of the fiscal body as per law or the stamp of
the issuing body, provide that it is according to legal requirements applicable
on such matters.
(4) Categories of administrative
acts that are to be issued under conditions of par. (3) are to be determined by
an order of the Minister of Public Finance.
Art. 43 Communication of the fiscal administrative act
(1) The fiscal administrative act must be communicated to the taxpayer
for whom it is intended.
(2) The fiscal administrative act is to be communicated as follows:
a) by the taxpayer’s presence to the issuing fiscal body and the receipt
of the fiscal administrative act by him/her against signature, while the
communication date is to be the date when the document is handed over against
signature;
b) by the empowered persons of fiscal bodies, by law;
c) by mail, at the taxpayer’s fiscal domicile, by registered letter with
receipt confirmation as well as by other means, such as fax, e-mail, if ensured
the transmittal of the text of the act and its confirmation receipt.
(3) In case the taxpayer or any other person entitled to receive the
fiscal administrative act at his/her fiscal domicile is absent, or in case of
refuse to receive the administrative act, the communication is to be done by
placing an ad in a national daily of large circulation and/or in a local daily
or in the Official Gazette of Romania, Part IV, which specifies that such act
was issued on the taxpayer’s name. The fiscal administrative act is to be
considered communicated 5 (five) days after the publication of the ad.
(4) The provisions of the Civil Procedure Code regarding the
communication of the procedural documents are to be adequately applied.
Art. 44 Opposability of the fiscal administrative act
A fiscal administrative act is effective as of the moment when it is
communicated to the taxpayer, or upon a subsequent date, as mentioned in the
communicated administrative act, under the law.
ART 45 Nulity of the fiscal administrative act
The lack of any of the elements of the fiscal administrative act
referring to the name, first name and capacity of the empowered person of the
fiscal body, the taxpayer’s name and first name or company name, the subject of
the administrative act or the signature of the empowered person of the fiscal
body, with the exception provided Art. 42 par. (3) of this code is to trigger
such fiscal administrative act nullity. The nullity may be ascertained upon
request or ex officio.
Art. 46 Repeal or modification of fiscal administrative acts
The fiscal administrative act may be modified or repealed in accordance
with this Code.
Art. 47 Correction of material errors
The fiscal body may correct material errors in the fiscal administrative
act ex officio or upon the taxpayer’s request. The corrected fiscal
administrative act is to be communicated to the taxpayer, by law.
CHAPTER III
Administration and assessment of evidence
SECTION 1
Art. 48 Means of evidence
(1) For the determination of the tax state of fact, the fiscal body is
to administer means of evidence under the law and may resort to the following:
a) request of information of any kind from taxpayers or other persons;
b) request of expert studies;
c) use of documents;
d) performance of on-site investigations.
(2) The evidence administered is to be corroborated and assessed by
considering their proving force as recognised by law.
Art. 49 Fiscal body right to request the taxpayer’s presence at its
office
The fiscal body can request the taxpayer’s presence at its office in
order to provide information and clarifications necessary for the determination
of his/her actual tax state of fact. When making such request, fiscal bodies
are also to specify documents that the taxpayer is to present, as the case may
be.
Art. 50 Communication of information among tax bodies
If during a tax procedure, facts that might be significant to other
fiscal legal relations are discovered, fiscal bodies are to inform reciprocally
the information acquired
SECTION 2
Information and expert studies
Art. 51 Obligation to provide information
(1) The taxpayer or other person empowered by him/her has the obligation
to provide the fiscal body with information as necessary for the determination
of the tax state of fact. The fiscal body may request information to other
persons as well, only when the tax state of facts was not clarified by the
taxpayer. Information provided by other persons are be taken into account only
to the extent that they are also confirmed by other means of evidence.
(2) The request for information is to be prepared in writing and is to
specify the nature of information requested for the determination of the tax
state of fact and the documents that support the information provided.
(3) The declaration of persons that are obliged according to par. (1) to
supply information is to be done either verbally or in writing, as the case may
be.
(4) In case that the person obliged to supply information in writing is
unable to write for reasons beyond his/her will, the fiscal body is to prepare
a minutes.
Art. 52 Banks obligation to supply information
(1) Banks are required to communicate to fiscal bodies the list of
individuals, legal persons or any other entity without legal personality that
open or close accounts, such persons legal status and domicile or location. The
communication is to be done during the first half of each month referring to
accounts opened or closed during the prior month. The communication is to be
sent to the Ministry of Public Finance.
(2) The Ministry of Public Finance together with the National Bank of
Romania are to issue procedures regarding the transmission of information
provided in par. (1).
(3) Upon the request of authorities of local public administration, the
Ministry of Public Finance is to transmit to such authorities information held
based on par.(1).
Art. 53 Expert studies
(1) Whenever deemed necessary, the fiscal body has the right to resort
to services of an expert in order to prepare an expert study. The fiscal body
is obliged to communicate the expert’s name to the taxpayer.
(2) The taxpayer may appoint an expert on own expense.
(3) Experts are obliged to keep the tax secret on data and information
acquired.
(4) The expert study is to be prepared in writing.
(5) Fees established for experts studies as provided in this article are
to be paid from the budgets of fiscal bodies that requested the expert’s
services, as the case may be.
SECTION3
Verification of documents and on-site
investigation
Art. 54 Producing documents
(1) For the determination of the tax state of fact, taxpayers are to
make available to the fiscal body registers, records, business documents, and
any other documents. The fiscal body has the right to request documents from
other persons as well, provided that such tax state of fact was not clarified
based on the documents made available by the taxpayer.
(2) The fiscal body may request that documents are made available at its
location or at the fiscal domicile of the person that is obliged to produce
such documents.
(3) The fiscal body has the right to keep, for the purpose of protection
against disposal or destruction, documents, acts, written documents, registers
and financial-accounting documents or any material element that proves the
assessment, record and payment of tax obligations by the taxpayer, for a period
of maximum 30 days. In exceptional cases, with the approval of the fiscal body,
the period of keeping such documents may be prolonged by maximum 90 days.
Art. 55 On-site investigation
(1) Under the law, the fiscal body may carry out an on-site
investigation, and in this respect it is to prepare a minutes.
(2) Taxpayers have the obligation to allow the employees empowered by the
fiscal body to carry out the on-site investigation and the experts used for
such action the access to lands, premises or any other enclosures, to the
extent that such access is necessary for ascertainment of tax interest.
(3) Owners of such lands or premises are to be informed in due time
about the investigation, except for cases provided in Art. 94, letter b).
Individuals are to be informed of their right to refuse access to domicile or
residence.
(4) In case of refuse, access to the domicile or residence of such
individual is to take place upon the authorisation by the competent law court,
and provisions in the presidential ordinance in the Civil Procedure Code are to
apply.
(5) Upon the fiscal body request, police bodies, military police agents
or other agents of public order are obliged to provide support for the
application of this article.
SECTION 4
Right to refuse to provide evidence
Art. 56 Right of relatives to refuse supply of information, performance
of expert studies and presentation of documents
(1) The taxpayer’s spouse and relatives of up to the 3rd
degree inclusively may refuse to supply information, the performance of expert
studies and the presentation of documents.
(2) Persons provided in par. (1) are to be advised on such right.
Art. 57 Right of other persons to refuse to supply information
(1) Priests, lawyers, notaries public, tax consultants, court executors,
auditors, chartered accountants, doctors and psychotherapists may refuse to
supply information regarding the data they became aware of during their
activity.
(2) Nurses as well as persons that participate in their professional
activity are to be assimilated to persons under par. (1).
(3) Persons provided in par. (1), except for priests, may provide
information, upon the consent of the person about whom the information was
requested
SECTION 5
Art. 58 Obligation of public authorities and institutions to supply
information and produce documents
Public authorities, public institutions and institutions of public
interest, central and local, as well as decentralised departments of the
central public authorities are to supply information and documents to fiscal
bodies, upon their request.
Art. 59 Collaboration between public authorities, public institutions
and institutions of public interest
(1) Public authorities, public institutions and institutions of public
interest are obliged to collaborate for purposes of this code.
(2) Actions carried out by authorities in par. (1) in accordance with
their competence by law are not to be deemed as collaboration.
(3) The fiscal body that requests the collaboration is to be liable for
the legality of such request, and the authority to whom the request was sent is
to be liable for data provided.
Art. 60 Conditions and limits of collaboration
(1) The collaboration between public authorities, public institutions
and institutions of public interest is to be done within the limits of their
competence, by law.
(2) If the public authority, the public institution or the institution
of public interest refuses the collaboration, the public authority that is
higher than both bodies is to decide upon. If such authority does not exist,
then the decision is to be made by the authority higher than that whose collaboration
was requested.
Art. 61 Cross-border collaboration between public authorities
(1) Fiscal bodies are to collaborate with similar fiscal bodies of other
countries based on international conventions.
(2) In the absence of such convention, fiscal bodies may grant or
request the collaboration of another fiscal body from a different country,
based on reciprocity.
SECTION 6
Weight of evidence
Art. 62 Weight of evidence of justifying documents and accounting
records
The taxpayer’s justifying documents and accounting records are to
constitute evidence when assessing the taxation base. In case there are other
supporting documents as well, such documents are to be taken into account for
the determination of the taxation base.
Art. 63 Weight of evidence in proving the tax state of fact
(1) The taxpayer has the obligation to prove the documents and facts
that grounded his/her declarations and any application submitted to the fiscal
body.
(2) The fiscal body has the obligation to justify the assessment decision
based on evidence or on own findings.
Art. 64 Proving the titular of the ownership right for taxation purposes
(1) If certain goods, income or other valuables that by law are included
in the taxable base are found as being held by persons that continuously
benefit of gains or by any regular benefits derived from them and such persons
declare in writing that they are not owners of such goods, income or valuables
in question without showing who is the titular of such ownership right, then
the fiscal body is to resort to the temporary assessment of the adequate tax
obligation on the burden of the such persons.
(2) Under the law, the tax obligation regarding the taxable base in par.
(1) may be determined as being in charge of the titular of the ownership right.
Similarly, such titular is to owe damages to the persons that made the payment
for the settlement of the obligation assessed according to par. (1).
Art. 65 Estimation of the taxation base
(1) If the fiscal body cannot assess the taxation base, then such fiscal
body is to estimate it. In such case, all data and documents relevant for the
estimate are to be taken into account. The estimate consists in the
identification of amounts that are closest to that tax state of fact.
(2) In cases that under the law, fiscal bodies are entitled to estimate
the taxation base, such fiscal bodies are to take into account the market price
of the taxable transaction or good, as defined in the Fiscal Code.
CHAPTER IV
Deadlines
Art. 66 Computation of deadlines
Deadlines of any type as regards the exercise of rights and the
satisfaction of obligations provided in the Fiscal Procedure Code as well as by
other legal provisions applicable on the matter, unless the tax law provides
different, are to be computed according to the provisions of the Civil
Procedure Code.
Art. 67 Extension of deadlines
Deadlines for the submission of tax declarations and deadlines
established by a fiscal body by law can be extended under well-grounded
circumstances, according to the competence as determined by an order of the
Minister of Public Finance.
TITLE IV
Fiscal registration and accounting and fiscal
records
Art. 68 Fiscal registration obligation
(1) Any person or entity that is subject to a fiscal legal relation is
to register from a fiscalpoint of view and is to receive a fiscal
identification code. The fiscal identification code is to be as follows:
a) for legal persons, except for traders, and for associations and other
entities without legal personality, the fiscal registration code as granted by
the competent fiscal body in the subordination of the National Agency for Tax
Administration;
b) for individuals, the personal identification number as granted under
special laws;
c) for individuals that do not have a personal identification number,
the fiscal identification number as granted by the competent fiscal body in the
subordination of the National Agency for Tax Administration;
d) for traders, including subsidiaries of traders whose main trade
location is abroad, the single registration code as granted under special laws;
e) for individuals that are value-added tax payers, the fiscal
registration code as granted by the competent fiscal body in the subordination
of the National Agency for Tax Administration.
(2) Persons in par. (1), letter d) are to register from fiscalpoint of
view according to the special relevant procedure.
(3) For purposes of granting the fiscal identification code, persons
provided in par. (1), letters a), c) and e) have the obligation to submit a
fiscal registration declaration.
(4) Persons under par. (1), letter b) that have the capacity of
employers are also obliged to file a fiscal registration declaration.
(5) Taxpayers that obtain incomes from independent activities for which
anticipatory payments are made by withholding by payers of incomes, are
required to submit the fiscal registration declaration to the competent fiscal
body, for registration purposes.
(6) The registration declaration is to be submitted within 30 days as
of:
a) the date of establishment by law, in case of legal persons,
associations and other entities without legal personality;
b) the date of issuance of the legal act of operation, of inception of
activity, the date of obtaining the first income or acquiring the employer
status, as applicable, in case of individuals.
Art. 69 Payers of value-added tax fiscal registration and writing out
(1) Any taxable person that carries out taxable and/or operations exempt
from value-added tax with the right to deduction must apply for the registration
as a value-added tax payer at the competent fiscal body under the subordination
of the National Agency for Tax Administration in the following cases:
a) upon the establishment, mandatory, if it declares that it is to
realise a turnover above the exemption threshold as provided by the Fiscal Code
as regards the value-added tax;
b) upon the establishment, mandatory, if it declares that it is to
realise a turnover under the exemption threshold, but opts for the application
of the normal value-added tax regime;
c) after the establishment, mandatory, if it exceeds the exemption
threshold as provided in the Fiscal Code regarding the value-added tax, within
10 days as of the end of the month when such threshold was exceeded;
d) after the establishment, if the turnover realised is under the
exemption threshold, but it opts for the application of the normal value-added
tax regime.
(2) Persons that exclusively carry out operations that are exempt from
the value-added tax and according to the Fiscal Code may opt for the taxation
thereof, must apply for the registration as value-added tax payers.
(3) The turnover declared to the fiscal body is to be that assessed
according to provisions of the Fiscal Code regarding the value-added tax.
(4) In case of persons registered as value-added tax payers, the fiscal
identification code is to be preceded by letter “R”.
(5) The date of registration as a value-added tax payer is to be as
follows:
a) the date of communication of the registration certificate in cases
under par. (1), letter a) andlett. b) and, as the case may be, in par. (2);
b) the first day of the month following the month when the taxable
person opts for the application of the normal value-added tax regime in cases
provided in par. (1), lett. d);
c) the first day of the month following the month when the taxable
person applies for the registration as a value-added tax payer in cases
provided in par. (1), lett. c) and, as the case may be, in par.(2).
(6) Any taxable person that is registered as a value-added tax payer
that further to registration, carries out exclusively operations that do no
give right to deduction must apply for his/her writing out of records in
capacity of a value-added tax payer within 10 days as of the end of the month
when such operations are exclusively carried out. Writing out of records in
capacity of a value-added tax payer is to be performed as of the first day of
the month following the month when the taxable person is required to apply for
such writing out of records.
(7) Any taxable person that is registered as a value-added tax payer is
to apply for its writing out of records in capacity of a value-added tax payer
in case of ceasing activity within 15 days as of the date of the document which
record such case. Writing out of records in capacity of a value-added tax payer
is to be made as of the first day of the month following the month when the
declaration of specification was submitted.
Art. 70 Obligation to mark the fiscal identification code on documents
Payers of taxes, fees, contributions and other amounts owed to the
general consolidated budget are required to mark the own fiscal identification
code on invoices, letters, offers, orders or any other documents issued by
them.
Art. 71 Declaration of subsidiaries and secondary locations
(1) Taxpayers are required to declare to the competent fiscal body in
the subordination of the National Agency for Tax Administration the
establishment of secondary locations within 30 days.
(2) Taxpayers that have the fiscal domicile in Romania are required to
declare the establishment of subsidiaries and secondary locations abroad within
30 days as of the establishment.
Art. 72 Form and content of the fiscal registration declaration
(1) The fiscal registration declaration is to be prepared by the
completion of a standard form made available for free by the fiscal body in the
subordination of the National Agency for Tax Administration and is to be
accompanied by proofing documents for the information included in such
declaration.
(2) The fiscal registration declaration is to include: the taxpayer’s
identification data, categories of payment obligations due according to the
Fiscal Code, data about the secondary locations, identification data of the
empowered person, data regarding the taxpayer’s legal status, as well as any
information necessary for the administration of taxes, fees, contributions and
other amounts due to the general consolidated budget.
Art. 73 Fiscal registration certificate
(1) Based on the fiscal registration declaration, submitted according to
Art. 68 par. (3), the competent fiscal body in the subordination of the
National Agency for Tax Administration is to issue the fiscal registration
certificate, within 15 days as of the date of submission of such declaration.
The fiscal identification code must be included in the fiscal registration
certificate.
(2) The issuance of fiscal registration certificates is not to be
subject to stamp fees.
(3) Taxpayers that obtain incomes from trade activities or supplies of
services to public are required to post the fiscal registration certificate in
places where they carry out activity.
(4) In case of loss, theft or destruction of the fiscal registration
certificate, the fiscal body is to issue a duplicate of it based on the
taxpayers application and on the proof of the publication regarding such loss,
theft or destruction in the Official Gazette of Romania, Part III.
Art. 74 Modifications further to fiscal registration
(1) Further modifications of data included in the fiscal registration
declaration must be informed to the competent fiscal body in the subordination
of the National Agency for Tax Administration within 30 days as of their
occurrence, by the completion and the submission of the declaration of
specifications.
(2) When conditions that led to the fiscal registration no longer exist,
taxpayers are required to submit the fiscal registration certificate together
with the declaration of specifications to the fiscal bodies, for cancellation
purposes.
Art. 75 Taxpayers’ register
(1) The competent fiscal body in the subordination of the National
Agency for Tax Administration is to organize the records of payers of taxes,
fees, contributions and other amounts owed to the state budget, social
insurance budget, the budget of the single fund of health social insurance,
unemployment insurance budget in the taxpayers’ register, that include:
a) the taxpayer’s identification data;
b) categories of tax payment obligations that are owed by law,
hereinafter called fiscal vector;
c) other information necessary for the administration of tax
obligations.
(2) Data provided in par. (1) are to be completed based on the
information communicated by taxpayers, by the Office of Registry of Commerce,
by the department of population records, by other authorities and institutions
and according to own findings of the fiscal body as well.
(3) Data in the taxpayers register may be modified ex officio whenever
there is found that they do not correspond to the actual state of fact and such
modifications are to be informed to taxpayers.
(4) The ex officio modification of the fiscal domicile based on findings
made according to par. (3) are to be made by a decision issued by the competent
fiscal body after the taxpayer’s prior hearing according to Art. 9.
(5) Taxpayers that are legal persons or any other entities without legal
personality that failed to submit tax declarations and financial statements,
failed to make payments and did not submit any applications to the fiscal body
for 12 consecutive months are to be transferred under a special record of
inactive taxpayers.
(6) Taxpayers transferred under the special record are to be subject to
the tax audit within maximum 3 months as of the date of the transfer under the
special record
(7) During the period that the taxpayer is deemed inactive, the fiscal
registration certificate is to be suspended.
(8) Taxpayers transferred under the special record are to be
re-activated as of the date when:
a) they submit a fiscal declaration or a financial statement;
b) they carry out a voluntary payment;
c) they submit an application to fiscal bodies;
d) the fiscal body ascertains that such taxpayers carriy out activity
that is subject to the fiscal law.
Art. 76 Obligation to maintain fiscal records
In order to determine
the actual tax state of fact and the tax obligations owed, taxpayers are
required to maintain fiscal records according to normative acts in force.
Art. 77Rules for maintaining accounting and fiscal records
(1) Accounting and fiscal records are to be maintained at the taxpayer’s
fiscal domicile or the secondary locations, as the case may be.
(2) Legal provisions regarding the maintenance, archiving and the
language used in accounting records are also to be applicable to fiscal
records.
(3) In case that accounting and fiscal records are maintained by means
of electronic management systems, beside data archived in electronic form, the
taxpayers are also required to keep and explain the IT applications by the aid
of which he/she generated such records.
(4) Taxpayers are required to record the income realised and expenses
incurred from the activities carried out, by preparing registers or any other
documents as provided by law.
(5) For the activity carried out, taxpayers are required to use primary
documents and accounting record documents as provided by law, purchased only
from units determined through legal norms in force and to integrally complete
the forms boxes according to operations recorded.
(6) The fiscal body may take into account any records maintained by taxpayers
that are relevant for taxation purposes.
TITLE V
Tax declaration
Art. 78 Obligation to submit tax declarations
(1) The tax
declaration is to be submitted by persons obliged to do so, according to the
Fiscal Code, within the deadlines provided by such Fiscal Code.
(2) In case the Fiscal Code does not include any provision, the Ministry
of Public Finance is to determine the deadline for the submission of the tax
declarations.
(3) The obligation to submit the tax declaration is still valid in cases
when:
a) the fiscal obligation was paid;
b) such tax obligation is exempt from payment, according to legal
regulations;
c) the fiscal body assessed ex officio the taxation base as well as the
tax obligation due.
(4) In case of temporary inactivity or in case of obligations to declare
certain incomes that are exempt from the payment of income tax under the law,
the competent fiscal body may approve, upon the taxpayer’s application, other
deadlines or conditions for the submission of tax declarations, depending on
the needs of the administration of tax obligations. As regards the deadlines
and conditions, the fiscal body is to decide, according to its competences as
approved by an order of the Minister of Public Finance.
Art. 79 Form and content of tax declaration
(1) The tax declaration is to be prepared by filling in a standard form
that is made available for free by the fiscal body.
(2) The taxpayer is to compute the amount of the tax obligation in the
tax declaration, if so provided by law.
(3) The taxpayer is obliged to fill in the tax declaration by specifying
the information required in the form according to his/her fiscal status, of a
correct, complete manner and in good faith. The tax declaration is to be signed
by the taxpayer or by his/her empowered person.
(4) The tax declaration is to be accompanied by the documentation as
required by legal provisions.
(5) For certain tax obligations categories as provided by an order of
the Minister of Public Finance, the fiscal body may send the declaration forms
for taxes, fees, contributions and other amounts owed to the general
consolidated budget, instructions for filling in, other useful information and
self-addressed envelopes to taxpayers. In such case, the mailing cost is to be
borne by the fiscal body.
Art. 80 Submission of tax declarations
(1) The tax declaration is to be submitted to the registration office of
the competent fiscal body, or by mail, through a registered letter. The tax
declaration can be transmitted by electronic means or by distance transmission
systems, according to the procedure provided by an order of the Minister of
Public Finance.
(2) Tax declarations may be prepared by the fiscal body in form of
minutes, provided that the taxpayer is unable to write for reasons beyond
his/her will.
(3) The date of submission of tax declarations is the date of such tax
declaration registration at the fiscal body or the date of its submission to
the post office, as the case may be.
(4) Failure to submit the tax declaration is to give the fiscal body the
right to proceed to the ex officio assessment of tax obligations, by estimating
the taxation base according to Art. 65. The ex-officio assessment of tax
obligation cannot be performed before the end of a 15 day period after the
taxpayer’s information as regards the failure to observe the legal deadline for
the submission of the tax declaration.
Art. 81 Correction of tax declarations
Tax declarations may be corrected by the taxpayer on own initiative.
TITLE VI
Determination of taxes, fees, contributions and
other amounts owed to the general consolidated budget
CHAPTER I
General provisions
Art. 82 Assessment of taxes, fees, contributions and other amounts owed
to the general consolidated budget
(1) Taxes, fees, contributions and other amounts owed to the general
consolidated budget are to be assessed as follows:
a) by a tax declaration, under the conditions of Art. 79, par. (2) and
Art. 83, par. (4);
b) by a decision issued by the fiscal body, for the rest of cases.
(2) Provisions in par. (1) are to apply also in cases that taxes, fees,
contributions and other amounts owed to the general consolidated budget are
exempt from payment, according to legal regulations, as well as in case of a
value-added tax refund.
Art. 83 Tax decision
(1) The tax decision
is to be issued by the competent fiscal body. The fiscal body is to issue a tax
decision whenever it modifies the taxation base.
(2) For receivables that are administered by the Ministry of Public
Finance through the National Agency for Tax Administration, other competences
for the issuance of tax decisions as a result of the tax audit may be
established as well, by an order of the Minister of Public Finance.
(3) The tax decision is to be issued, if necessary, also in case that no
decision regarding the taxation base as per Art. 86 was issued.
(4) The tax declaration prepared according to Art. 79 par. (2) is to be
assimilated to a tax decision, under the reserve of further verifications.
(5) In case the law does not provide for the obligation to re-compute
the tax, the tax declaration is to be assimilated to a decision referring to
the taxation base.
(6) The tax decision and the decision referring to ancillary payment
obligations are also payment notifications as of the date of communication thereof.
Art. 84 Form and content of the tax decision
The tax decision must meet the conditions provided in Art. 42. Beside
the elements provided in Art. 42, par. (2), the tax decision is to include the
category of tax, fee, contribution or other amount due to the general
consolidated budget, the taxation base as well as their tax amount due,
separately for each taxable period.
Art. 85 Fiscal administrative acts assimilated to tax decisions
The following fiscal administrative acts are to be assimilated to
taxation decisions:
a. decisions regarding value-added tax refunds and decisions regarding
refunds of taxes, contribution and other amounts due to the general
consolidated budget;
b. decisions referring to the taxation bases;
c. decisions as regards ancillary payment obligations.
Art. 86 Decisions referring to taxation bases
Taxation bases are to be determined separately, by a decision regarding
taxation bases in the following cases:
a) when the taxable income is obtained by several persons. The decision
is to include also the distribution of the taxable income per each person that
participated in the realisation of such income;
b) when the source of the taxable income is located within the
jurisdiction of a fiscal body, different from the competent territorial one. In
such case, the competence to determine the taxation base is to stay with the
fiscal body within whose jurisdiction the income source is located.
(2) In case the taxable income is obtained by several persons, then such
persons may appoint a jointly empowered person to carry out the relation with
the fiscal body.
Art. 87 Determination of tax obligations under the reserve of further
verification
(1) The amount of fiscal obligations is to be determined under the
reserve of further verifications.
(2) The tax decision under the reserve of further verification may be
cancelled or amended upon the initiative of the fiscal body or upon the
taxpayer’s application, based on the findings of the competent fiscal body.
(3) The reserve of further verification is to be cancelled only after
the end of the statute of limitation or as a result of the tax audit carried
out within such limitation period.
CHAPTER II
Limitation of the right to determine tax
obligations
Art. 88 Subject, deadline and beginning of the statute of limitation of
the right to assess tax obligations
(1) The fiscal body right to determine tax obligations is limited to
five years, unless otherwise provided by law.
(2) The statute of limitation of the right provided in par. (1) is to
begin as of 1st January of the year following the year when the tax
receivable arose according to Art. 23, unless otherwise provided by law.
(3) The right to asses tax obligations is to be limited to 10 years,
provided that such obligations result from a criminal law violation committed
as provided by criminal law.
(4) The deadline in par. (3) is to begin as of the date of committing
the fact that is a criminal law violation and is to be sanctioned as such by a
final court decision.
Art. 89 Interruption and suspension of statute of limitation for the
right to assess tax obligations
(1) The deadline provided in Art. 88 is to be interrupted and suspended
by the law regarding the interruption and suspension of the statutes of
limitation of the right to act according to the common law.
(2) The statute of limitation of the right to assess the fiscal
obligation is to be suspended for the period between the moment of beginning
the fiscal audit and the moment of issuance of the tax decision, as a result of
carrying out the fiscal audit.
Art. 90 Effect of the expiry of statute of limitation of the right to
assess tax obligations
If the fiscal body ascertains that the statute of limitation of the
right to assess tax obligations expired, such fiscal body is to proceed to the
cease of the procedure of issuing the tax receivable title.
TITLE VII
Tax audit
CHAPTER I
Scope of the tax audit
Art. 91 Tax audit subject and functions
(1) The subject of tax audits is to verify the taxation bases, the
legality and the conformity of tax declarations, the accuracy and exactness of
the taxpayers’ compliance with obligations, the observance of the accounting
and fiscal legislation provisions, the assessment of differences in payment
obligations, as well as their related ancillaries.
(2) The tax audit is to have the following tasks:
a) to fiscally ascertain and investigate all documents and facts that
result from the activity of the taxpayer that is subject to the audit or of
other persons as regards the legality and conformity of tax declarations, the
accuracy and exactness of the compliance with tax obligations, in order to
discover new elements that are relevant for the application of fiscal
provisions;
b) to analyse and assess fiscal data in order to compare tax
declarations with the own information or information obtained from other
sources;
c) to sanction the facts ascertained, according to law, and to enforce
measures for the prevention and fight against deviations from the fiscal
legislation.
(3) In order to comply with tasks under par. (2), the tax audit body is
to carry out the following:
a) to examine documents in the taxpayer’s fiscal file;
b) to verify the concordance between data in tax declarations and data
in the taxpayer’s accounting records;
c) to discuss findings and to request explanations in writing from the
legal representatives of taxpayers or their empowered persons, as the case may
be;
d) to request information from third parties;
e) to assess differences of tax obligations due;
f) to verify places where activities that generate taxable incomes are
carried out;
g) to enforce precautionary measures, under the law;
h) to carry out tax investigations, according to par. (2), letter a);
i) to enforce sanctions, according to legal provisions.
Art. 92 Persons subject to tax audit
The tax audit is to be carried out in respect to all persons,
irrespective of their organisation form, that are obliged to assess, withhold
and pay taxes, fees, contributions and other amounts due to the general
consolidated budget, as provided by law.
Art. 93 Forms and scope of tax
audit
(1) Forms of the tax audit forms are to be as follows:
a) general tax audit, that is the activity of verification of all
categories of a taxpayer’s tax obligations for a determined period.
b) partial tax audit, that is the activity of verification of one or
more than one tax obligations for a determined period.
(2) The tax audit can be extended over all relations that are relevant
for taxation purposes, provided that such relations are of interest for the application
of the fiscal law.
Art. 94 Tax audit procedures
(1) In carrying out its functions, the tax audit may apply the following
audit procedures:
a) random audit, which consists in the selective verification of
significant documents and operations whereby reflecting the methods of
computation, recording and payment of the tax obligations due to the general
consolidated budget;
b) unannounced audit, which consists in the activity of verification of
facts and documents mainly as a result to an information regarding the
existence of certain violations of fiscal legislation, without previously
notifying the taxpayer;
c) crossed audit, which consists in the verification of documents and
taxable operations of the taxpayer in correlation to those held by other persons;
the crossed audit may also be an unannounced audit.
(2) At the end of the unannounced audit, a minutes is to be concluded.
Art. 95 Period subject to tax audit
(1) The tax audit is to be carried out within the statute of limitation
for the right to assess tax obligations.
(2) For large taxpayers, the period subject to tax audit is to begin as
of the end of the period which was previously audited, in compliance with par.
(1).
(3) For the other categories of taxpayers, the tax audit is to be carried
out upon the receivables arisen within the last three fiscal years for which
there is an obligation to submit tax declarations. The tax audit can be
extended over the statute of limitation of the right to assess tax obligations
provided that:
a) there are indications as regards diminishing taxes, fees,
contributions and other amounts owed to the general consolidated budget;
b) no tax declarations were submitted;
c) obligations of payment of taxes, fees, contributions and other
amounts due to the general consolidated budget were not satisfied.
CHAPTER II
Carrying out tax audit
Art. 96 Competence
(1) The tax audit is to be carried out exclusively, directly and with no
limitations throughout the National Agency for Tax Administration or, as the
case may be, by specialist departments of authorities of local public
administration, according to provisions of this title or by other authorities
that are competent by law to administer taxes, fees, contributions and other
amounts due to the general consolidated budget.
(2) Within the National Agency for Tax Administration, the competence to
carry out the tax audit is to be established through the statutory law,
approved in compliance with the law.
(3) Competence regarding the performance of tax audits may be delegated
to a different fiscal body.
Art. 97 Taxpayers selection for tax audit purposes
(1) The competent fiscal body is to be in charge with the selection of
taxpayers to be subject to tax audits.
(2) The taxpayer cannot object as
regards the selection procedure used.
Art. 98 Notification of tax audit
(1) Prior to carrying out a tax
audit, the fiscal body is obliged to inform taxpayers about the intended
action, by a notification of tax audit.
(2) The notification of tax audit
is to include the following:
a) the tax audit legal grounds;
b) the date when the tax audit is
likely to commence;
c) the tax obligations and periods
that are subject to the tax audit.
d) the possibility to apply for a
postponement of the date of beginning the tax audit. The postponement of the
tax audit date can only be applied for once, based on well-grounded reasons.
Art. 99 Communication of
notification of tax audit
(1) The tax audit notification is
to be communicated to the taxpayer in writing, before the beginning of the tax audit,
as follows:
a) 30 days before, for large
taxpayers;
b) 15 days before, in the other
cases.
(2) The communication of the tax
audit notification is not required in the following cases:
a) for the solution of certain
taxpayer’s applications;
b) for actions that are carried out
further to the request from other authorities, under the law;
c) in case of unannounced audit.
Art. 100 Place and period of
carrying out tax audit
(1) A tax audit is to be generally
carried out at the taxpayer’s business premises. The taxpayer has to make
available an adequate room and the logistics required for the performance of
the audit.
(2) In the absence of an adequate
work place for the performance of the audit, the audit activity can be carried
out at the location of the fiscal body or in any location as mutually agreed
upon with the taxpayer.
(3) Irrespective of the place where
the tax audit is carried out, the fiscal body has the right to inspect the
places where activity is carried out, in the presence of the taxpayer or of a
person designated by him/her.
(4) As a rule, the tax audit is to
take place during the taxpayer’s working hours. The tax audit may also be
carried out outside the taxpayer’s working hours, with the taxpayer’s written
acceptance and with the approval of the head of the fiscal body.
Art. 101 Duration of of performance of a tax audit
(1) The duration of carrying out a
tax audit is to be determined by the tax audit bodies or, as the case may be,
by specialist departments of authorities of local public administration,
depending on the objectives of the audit and it cannot exceed 3 months.
(2) In case of large taxpayers or
taxpayers that have secondary locations, the audit duration cannot exceed 6
months.
Art. 102 Rules as regards the tax
audit
(1) The tax audit is to have in
view the examination of all facts and legal relations that are relevant for
taxation purposes.
(2) The tax audit is to be carried
out so as to have a minimum impact on the current activity of the taxpayers and
to use efficiently the time scheduled for the audit.
(3) The tax audit is to be carried
out only once for each tax,fee,contribution and other amount due to the general
consolidated budget and for each period that is subject to taxation. By way of
derogation, the head of the competent tax audit body may decide to re-verify
facts and documents within a certain period provided that, as of the date of
completion of the tax audit and until the expiry of the statute of limitation,
additional information, which tax auditors were not aware of upon the audit or
errors of computation arise, which may influence such results.
(4) In case that the result of the
investigation of criminal cases by competent bodies is the non existence of a
prejudice, then the re-verification ordered based on par. (3) is not to be
followed by the issuance of a tax decision.
(5) The tax audit is to be carried
out based on principles of independence, singleness, autonomy, hierarchical
approach, territoriality and de-centralisation.
(6) The tax audit activity is to be
organised and carried out based on certain annual, quarterly and monthly
schedules, which are to be approved in accordance with an order of the
president of the National Agency for Tax Administration, or by acts of
authorities of local public administration, as the case may be.
(7) Upon the initiation of tax
audits, the auditor is required to show his/her audit identity card as well as
the duty order, signed by the head of the fiscal bodies, to the taxpayer. The
beginning of the tax audit is to be recorded in the single audit register.
(8) Upon the end of tax audit, the
taxpayer is obliged to prepare a written statement on own responsibility, to
show that all documents and information required for the tax audit were made
available. The statement is also to include the specification that all
requested documents that were made available were returned to such taxpayer.
(9) The taxpayer is obliged to
comply with the measures provided in the document prepared upon the tax audit,
within the deadlines and conditions as determined by the tax audit bodies.
Art. 103 The taxpayer’s obligation
to collaborate
(1) The taxpayer is obliged to
collaborate in ascertaining the actual tax state of fact. He/she is to provide
information, to make available all documents at the audit location, and to
provide any other information as necessary for the clarification of actual
facts that are relevant for taxation purposes.
(2) Upon the beginning of the tax
audit, the taxpayer is to be informed that he/she may designate persons to
provide information. Provided that the information provided by the taxpayer or
by the person appointed by him/her is insufficient, the tax auditor may contact
other persons as well to obtain information.
(3) During the entire duration of
carrying out the tax audit, taxpayers that are subject to such tax audit have
the right to benefit from specialist or legal assistance.
Art. 104 Taxpayer’s right to be
informed
(1) The taxpayer is to be informed
during the tax audit on significant findings resulted from the tax audit.
(2) Upon the completion of the tax
audit, the tax audit bodies are to present their findings and fiscal
consequences to the taxpayer, and are to allow such taxpayer the possibility to
express his/herpoint of view according to Art. 9 par. (1) in this code, except
for the case when the taxation basses suffered no modification further to the
tax audit or in case the taxpayers waives such rightand notifies the tax audit
bodies on such decision.
(3) The date, the time and the
place of presentation of conclusions are to be communicated to the taxpayer in
due time.
(4) The taxpayer has the right to
present in writing his/herpoint of view regarding the findings of the tax
audit.
Art. 105 Informing prosecution
bodies
(1) Fiscal bodies are to notify the
criminal investigation bodies of findings during the tax audit, which might
meet the constitutive elements of a criminal law violation, under the
conditions provided by the Criminal Law.
(2) In cases provided in par. (1),
fiscal bodies are required to prepare a minutes signed by the taxpayer that is
subject to the audit, with or without explanations or objections from the
taxpayer. In case the taxpayer that is subject to the audit refuses to sign
such minutes, the tax audit body is to record such fact in the minutes. In all
cases, the minutes is to be communicated to the taxpayer.
Art. 106 Report on the result of a
tax audit
(1) The result of a tax audit is to
be mentioned in a written report that includes findings of the audit from both
a factual and a legalpoint of view.
(2) Provided that, as a result of
the audit, the tax base changes, the report prepared is to ground the issuance
of the tax decision. If no changes occur to the taxation base, then the
taxpayer is to be advised of this situation in writing.
(3) In case that, as a result of
carrying out a tax audit, the criminal investigation bodies were not notified,
the tax decision referring to the subject to the criminal notification may be
issued after the final solution of the criminal case.
TITLE
VIII
Collection
of tax receivables
CHAPTER
I
General
provisions
Art. 107 Collection of tax
receivables
(1) For purposes of this title, the
collection consists in carrying out actions in view of the settlement of tax
receivables.
(2) The collection of tax
receivables is to be carried out based on a receivable title or based on an
execution title, as the case may be.
(3) The receivable title is the
document that determines and specifies the tax receivable, which is prepared by
the competent bodies or by persons authorised by law.
Art. 108Payment deadlines
(1) Tax receivables are to become
outstanding upon the expiry of the deadlines provided in the Fiscal Code or in
other regulating laws.
(2) For the differences of main and
ancillary tax obligations as determined by law, the payment deadline is to be
determined depending on the communication date, as follows:
a) if the communication date is
between the 1st and the 15th day of the month, the
payment deadline is to be on or before the 5thday of the following
month;
b) if the communication date is
between the 16th and the 31st of the month, the payment
deadline is to be on or before the 20th of the following month;
(3) For fiscal obligations with
scheduled or deferred payment, as well as for ancillaries thereof, the deadline
is to be established by the document by which such payment incentive is
granted.
(4) For tax receivables that are
administered by the Ministry of Public Finance for the payment of which no
deadlines are provided, such deadlines are to be established by an order of the
Minister of Public Finance.
(5) For fiscal receivables to the
local budgets that have no payment deadlines provided, such deadlines are to be
established by a joint order of the Minister of Administration of Home Affairs
and the Minister of Public Finance.
(6) Social contributions that are
administered by the Ministry of Public Finance, after their computation and
withholding according to the relevant provisions, are to be transferred on or
before the 25th day of the month following the month for which the
payment of salary rights is made.
CHAPTER
II
Settlement
of tax receivables through payment, off-set and refund
Art. 109 Provisions regarding the
performance of the payment
(1) Payments to fiscal bodies are
to be performed through banks, treasuries and other institutions that are
authorised to carry out payment operations.
(2) Debtors are to pay their tax
obligations distinctly for each tax, fee, contribution or other amounts due to
the general consolidated budget, including late payment interest and increased
amounts.
(3) In case of settlement through
the payment of tax obligations, the moment of payment is to be as follows:
a) for cash payments, the date
recorded on the payment document issued by the bodies or persons authorised by
the fiscal body;
b) for payments performed through a
postal order, the post office date, as mentioned on such postal order;
c) for payments performed by bank
disbursement, the date when banks debit the account of the payer based on specific
disbursement instruments, as confirmed by their authorised stamp and signature,
except for the case provided in Art. 116.
d) for tax obligations that are
settled by cancellation of mobile tax stamps, the date of registration at the
competent body of the document or the act for which the stamps due by law were
submitted and cancelled.
Art. 110 Sequence of debts
settlement
(1) If a taxpayer owes several
types of taxes, fees, contributions and other amounts that are tax receivables
as provided in Art. 21 par. (2) lett. a), and the amount paid is not sufficient
to settle all debts, then debts of such type of main tax receivables as the
taxpayer decides are to be settled.
(2) Within the type of tax, fee,
contribution or other amounts, as determined by the taxpayer, the payment is to
be made in the following sequence:
a) amounts owed for instalments in
schedules of payment of fiscal obligations for which scheduled or deferred
payments were approved, as well as interest that are payable during the period
of the scheduled and/or deferred payment and that are paid by law;
b) main fiscal obligation whose
deadline is during the current year, as well as ancillaries thereof, in the
sequence of length thereof;
c) fiscal obligations due and
unpaid on the 31st December of the prior year, following the
sequence of their length, until the full settlement thereof;
d) late payment interest and
increased amounts related to tax obligations as provided in lett.c);
e) tax obligations with future
deadlines, upon the debtor’s request.
(3) For receivables to the local
budget, in the category of fiscal obligation as provided in par. (2) lett. b),
priority is given to the settlement of obligations assessed as a result of a
tax audit.
(4) Unless the debtor performs the
payment of fiscal obligations according to par. (2), the tax creditor is to
resort to the settlement of tax obligations under its administration, according
to the sequence of payment as regulated by this Code, and is to advise the
taxpayer on such settlement within 10 days as of the date of settlement.
(5) Any payment performed after the
communication of a summon within the forced execution is to settle the first
the fiscal obligation that was established in the execution title.
Art. 111 Offset
(1) By offsetting, receivables
administered by the Ministry of Public Finance are to be settled against the
debtor’s receivables, which consist in amounts to be reimbursed or refunded
from the budget, down to the lower of either amount, when both parties mutually
acquire the capacity of a creditor and a debtor, unless otherwise provided by
law.
(2) Tax receivables administered by
the territorial-administrative units is to be settled by offsetting receivables
of the debtor which consist in amounts to be refunded from local budgets down
to the lowest amount, when both parties mutually acquire both the capacity of a
creditor and a debtor, unless otherwise provided by law.
(3) The offset is to be performed
by the competent fiscal body upon the debtor’s application or prior to the
reimbursement or the refund of the rightful amounts of such debtor, as the case
may be, by observing the sequence in Art. 110, par.(2).
(4) The fiscal body may carry out
an offset ex officio whenever the existence of reciprocal receivables is
ascertained.
(5) The debtor’s receivables are to
offset obligations due to the same budget, and further on the remaining
difference offsets obligations due to the other budgets, by observing the
following priority sequence:
a) the State budget;
b) the risk fund for state
guarantees, for foreign loans;
c) the state social security
budget;
d) the budget of the Single
National Health Insurance Fund;
e) the unemployment fund.
(6) Provisions of par. (5) are not
applicable in case of local budget receivables
(7) The competent fiscal body is to
notify the debtor in writing about the offsetting measure taken according to
par. (3) within 7 days as of the date of carrying out such operation.
Art. 112 Refunds
(1) The following amounts are to be refunded to the debtor upon his/her
request:
a) amounts paid in the absence of a
receivable title;
b)amounts paid in excess to the tax
obligation;
c) amounts paid due to a
computation error;
d) amounts paid due to the
erroneous implementation of legal provisions;
e) amounts to be refunded from the
State budget;
f) amounts established by a
decision of judicial bodies or other bodies that are competent under the law;
g) amounts remaining after the
distribution as provided in Art. 166;
h) amounts resulting from the sale
of seized goods, or from withheld amounts due to sequestration, as the case may
be, based on a final and irrevocable court decision for theenforcement of the
cancellation of forced execution.
(2) By way of derogation from
provisions or par. (1), amounts to be refunded that are tax differences
resulted from the annual adjustment of the income tax that is owed by
individuals are to be refunded by competent fiscal bodies ex officio, within
not more than 60 days after the tax decision communication date.
(3) In case of refund of foreign
currency amounts confiscated, such operation is to be performed by law in ROL
at the reference exchange rate for EUR as communicated by the National Bank of
Romania for the date when the court decision enforcing the refund remains final
and irrevocable.
(4) If the debtor registers
outstanding tax obligations, then amounts in par. (1) and (2) are to be
refunded only after the performance of offset according to this Code.
(5) If the amount to be reimbursed
or refunded is less than the debtor’s outstanding tax obligations, then the
offset is to be performed down to the lowest amount to be reimbursed or
refunded.
(6) If the amount to be reimbursed
or refunded exceeds the debtor’s outstanding tax obligations, then the offset
is to be performed down to the lowest amount of outstanding tax obligations,
and the difference resulting thereof is to be refunded to the debtor.
(7)The procedures of reimbursement
and refund of amounts from the budget, including the modality to grant interest
as provided in Art. 119 are to be approved by an order of the Minister of
Public Finance.
Art. 113 Obligation of banks that
are subject to special monitoring or administration regime
Banks that are under special
monitoring or special administration regime and make payments as ordered within
the limit of the daily collection are to prioritise the daily settlement of
amounts from tax obligations as included in the payment orders issued by
debtors and/or tax receivables included in the collection orders issued by the
execution bodies.
CHAPTER
III
Late
payment interest and increased amounts
Art. 114 General provisions on late
payment interest and increased amounts
(1) Failure to pay tax obligations
upon the deadline results in the debtor’s obligation to pay late payment
interest and increased amounts.
(2) No late payment interest and
increased amounts is to be due for amounts payable as fines, late payment
interest and increased amounts determined under the law.
(3) Late payment interest and
increased amounts are to be revenues to the budget to which the main receivable
belongs.
Art. 115 Interest
(1) Interest are to be computed per
day, beginning the day that follows the deadline when the debt becomes due,
until the settlement date of the amount payable inclusively.
(2) By way of derogation from par.
(1), interest amounts are to be payable as follows:
a) for differences of taxes, fees,
contributions, as well as those that are administered by customs bodies as
determined by competent bodies, interest amounts are to become due beginning
the day that follows the deadline for the payment of the tax, the fee, orthe
contribution, for which the difference was determined, until the date of
settlement thereof, inclusively;
b) for taxes, fees and
contributions that are settled by forced execution, interest amounts are to be
computed until the date of the preparation of the minutes of distribution,
inclusively. For instalment payments, interest amounts are to be computed until
the date of preparation of the minutes of distribution for the anticipatory
payment. For the remaining amount due, interest is to be payable by the buyer.
c) for taxes, fees and
contributions of a debtor that was declared insolvent, interest amounts are to
be computed until the date of the minutes ascertaining suchinsolvency,
inclusively;
(3) The manner of computation of
the interest related to amounts of possible differences between the amount of
the profit tax paid on the 25th January of the year following the
assessment year and the amount of the profit tax due according to the tax
declaration prepared based on the annual financial statement is to be regulated
by methodological norms, approved by an order of the Minister of Public
Finance.
(4) For tax obligations unpaid on
or before the deadline for the payment of the global income tax, the interest
is to become be due as follows:
a) for the fiscal taxation year,
the interest for anticipatory payments as determined by tax bodies by decisions
of anticipatory payment is to be computed until the date of the debit or, as
the case may be, until the 31st December;
b) interest for amounts unpaid
during the taxation year according to lett. a) are to be computed as of 1stJanuary
of the following year until their settlement, inclusively;
c) in case the income tax assessed
by the annual tax decision is lower than that assessed by decisions for
anticipatory payment, interest amounts are to be re-computed as of 1st
January of the year following the assessment year, at the unpaid balance
compared to the annual tax as assessed by the annual tax decision, followed by
an appropriate adjustment of interest.
(5) The interest is to be
determined by a Government decision, upon the proposal of the Ministry of
Public Finance, correlated with the reference interest rate of the National
Bank of Romania, once a year, in December for the following year or in the
course of the year, if the rate varies by more than 5 percents.
Art. 116 Late payment interest and
increased amounts for payments made by bank disbursement
(1) Failure of banks to settle
amounts payable to the general consolidated budget within 3 working days as of
the date when the payer account is debited is not to exonerate the payer from
the obligation to pay such amounts and is to trigger late payment interest and
increased amounts equal to those in Art. 115 and 120, after the expiration of
the 3 day period.
(2) For the recovery of amounts
payable to the budget that are not settled by banks, as well as for the
recovery of late payment interest and increased amounts as provided in par.
(1), the payer may act against such bank unit.
Art. 117 Late payment interest and
increased amounts in case of offset and of the opening of procedure of judicial
reorganisation
(1) In case of tax receivables
settled by offset, late payment interest and increased amounts are to be
payable until the date of settlement, inclusively. For offsets performed upon
request, the settlement date is to be the date of submission of the application
for offset to the competent authorities, while for the offset performed before
the reimbursement or refund of the amounts rightful for the debtor, the date of
settlement is to be the date of submission of such reimbursement/refund
application.
(2) In case that, further to the
audit or the analysis of the application for offset, the amount to be offset is
less than the amount mentioned in the application for such offset, then late
payment interest and increased amounts are to be re-computed for the difference
remaining as of the date of registration of the application for offset.
(3) For tax obligations that are
settled through the offset procedures as provided by special normative acts
regulating thereof, the date of settlement is to be the date when the offset as
provided in the normative act or in the application norms approved by an order
of the Minister of Public Finance is performed.
(4) For tax obligations that are
unpaid within the deadline, both before and after the initiation of the
procedure of judicial reorganisation, late payment interest and increased
amounts are to become payable as of the date of the initiation of the
bankruptcy procedure. For fiscal obligations raised after the date of inception
of the bankruptcy procedurethat are unpaid within the deadline, no late payment
interest or increased amounts are to be payable.
Art. 118 Interest for payment
incentives
Interest is to be payable for the
period when incentives were granted for the payment of outstanding payment
obligations.
Art. 119 Interest for amounts to be
reimbursed or refunded from the budget
(1) For amounts to be reimbursed or
refunded from the budget, taxpayers are entitled to an interest as of the day
following the day of the deadline in Art. 112 alin.(2) or Art.199, as the case
may be. The grant of interest is to be performed upon the taxpayers request.
(2) The amount of the interest is
to be that under Art. 115, par. (5) and is to be borne from the same budget and
the same budgetary revenue from which amounts applied for by payers are
reimbursed or refunded.
Art. 120 Late payment increased
amounts
(1) Late payment of tax obligations is to be sanctioned by late
payment increased amounts worth 0.5% per month and/or fraction of month of
delay, as of the first day of the month following their deadline, until their
settlement date, inclusively. Late payment increased amounts are not to remove
the liability to pay interest.
(2) For cases provided in Art. 115,
par. (3) and (4), late payment increased amounts are to be subject to the
regime established for interest.
(3) Late payment increased amounts
are to be due until the date of the beginning the forced execution procedure.
(4) If payment incentives were
allowed, late payment increased amounts are to be payable until the first day
of the month when such incentives were allowed. Failure to observe payment incentives,
as allowed, is to result in the computation of late payment increased amounts
as of the date when incentives are no longer valid, according to the law.
(5) The amount of late payment
increased amounts may be modified annually by the State Budget law.
CHAPTER
IV
Payment
incentives
Art. 121 Incentives for the payment
of tax obligations
(1) Upon the taxpayers
well-grounded application, the competent fiscal body may allow payment
incentives for outstanding fiscal obligations, both before and during the
forced execution procedure, by law.
(2) Upon the well-grounded application of debtors that are
individuals or legal persons, local budgetary creditors, through the
authorities of the local public administration that administer such law, may
allow the following payment incentives for outstanding payment obligations that
they administer:
a) schedules for the payment of taxes, fees, rental
fees, royalties, contributions and other obligations to the local budget;
b) deferred payment of taxes, fees,
rental fees, royalties, contributions and other obligations to the local budget
c) schedules for the payment of
interest and/or increased amounts of any type, except interest owed during the
schedule period;
d) deferrals and/or exemptions or
deferrals and/or reductions of interest and/or late payment increased amounts,
except interest owed during the deferral period;
e) exemptions or reductions of
local taxes and fees, under the law.
(3) The procedure of granting
payment incentives for local budgetary receivables is to be established by
special normative acts.
(4) For the allowance of payment
incentives, local budgetary creditors are to request the debtors to constitute
guarantees.
(5) For obligations to the local
budget that are due and unpaid after the date of 1st July 2003 by
individuals, the guarantee is as follows:
a) an amount equal to two average
instalments in the schedule, which in the case of scheduled payments mean the
scheduled local budget liabilities and interest computed thereof;
b) an amount resulted from the
division of the counter value of deferred debts and computed interest by the
number of months approved for the deferred payment, in case of deferred
payments.
(6) For obligations to the local
budget that are owed and unpaid after the date of 1st July 2003 by
individuals, the guarantee is 100% of the total amount of the local budgetary
receivable for which the incentive was allowed.
CHAPTER V
Constitution of guarantees
Art. 122 Constitution of guarantees
The fiscal body is to request the
constitution of a guarantee for the following:
a) the suspension of the forced
execution according to Art. 143, par. (6);
b) the removal/cancellation of
precautionary measures;
c) taking over the payment
obligation by another person by a payment commitment in compliance with Art.
25, par. (2), letter d);
d) other cases under the law.
Art. 123 Types of guarantees
By law, guarantees for the
measurements under Art. 122 can be constituted by:
a) depositing amounts of money at a
State Treasury unit;
b) a bank guarantee letter;
c) a mortgage on real estate that
is located in Romania;
d) a pledge on movable goods;
e)a surety.
Art. 124 Use of guarantees
Under the law, the competent body
is to use the guarantees deposited if the purpose for which they were requested
was not achieved.
CHAPTER
VI
Precautionary
measures
Art. 125 Seizure and precautionary
sequester
(1) Precautionary measures under
this chapter are to be ordered and accomplished through administrative
procedures by the competent fiscal bodies.
(2) Precautionary measures are to
be taken in form of precautionary seizure and sequester on the debtor’s movable
and/or immovable goods, and on his/her income, whenever there is a potential
for the avoidance of obligations, conceal or dispose of the patrimony by such
debtor, that may thus significantly endanger or hinder the collection, as well
as in the case of suspension of the administrative act as provided in Art. 184.
(3) Such measures can also be taken
even if the receivable was not individualised yet and did not become due.
Precautionary measures ordered both by competent fiscal bodies and the law
courts or other competent bodies are to remain in force throughout the forced
execution process with no further formality required, unless cancelled by law.
Upon the receivable individualisation and becoming due, precautionary measures
are to become enforcement measures.
(4) Precautionary measures are to
be ordered by a decision issued by the competent fiscal bodies. The decision is
to include the fiscal bodies’ specification to the debtor that such
precautionary measures are to be cancelled further to providing a guarantee
equal to the receivable assessed or estimated, as the case may be.
(5) The decision to enforce
precautionary measures must be justified and signed by the head of the
competent fiscal body.
(6) The precautionary measures
ordered in compliance with par. (2), as well as measures decided by law courts
or by other competent bodies are to be applied in compliance with provisions
regarding the forced execution, which are to apply adequately.
(7) In case of deciding the
precautionary sequester over real estate, a copy of the minutes prepared by the
enforcement body is to be communicated to the Land Book Office for registration
purposes.
(8) The registration is to turn the
sequester opposable to all those that acquire any right over such real estate
after the registration. The ordering documents which might occur further to the
registration in compliance withArt. (7) are to become fully null.
(9) Unless the value of the
debtor’s own goods fully covers the budgetary receivable of the general
consolidated budget, precautionary measures may also be taken regarding the
goods held by the debtor under joint ownership with third parties for the
share-quota held by such third parties.
(10) The person concerned may
contest the documents by which precautionary measures are ordered and carried
out in compliance with provisions of Art. 168.
Art. 126 Cancellation of
precautionary measures
The precautionary measures enforced
according to Art. 125 are to be cancelled by a grounded decision of tax
creditors, provided that the reasons for which such precautionary measures were
ordered or for the incorporation of the guarantee according to Art. 123 ceased,
as the case may be.
CHAPTER
VII
Limitation
of the right to request forced execution and offset or refund
Art. 127 Initiation of the statute
of limitation
(1) The right to request the forced
execution of tax receivables is to be limited within 5 years as of 1st
January of the year following the year when such right arose.
(2) Statutes of limitation under
par. (1) are also to apply to tax receivables resulting from fines due to civil
law violations.
Art. 128 Suspension of the statute
of limitation
The statute of limitation mentioned
under Art. 127 is to be suspended as follows:
a) in the cases and under the terms
as established by law for the suspension of the statute of limitation of the
right to action;
b) in the cases and under the terms
that the suspension of execution is provided under the law or was decided by
court or by other competent authority, by law;
c) throughout the validity period
of the incentive granted by law;
d) as long as the debtor hides in
bad faith revenues or goods from the forced execution;
e) in other cases as provided by
law.
Art. 129 Interruption of statute of
limitation
The statutes of limitation provided
in Art. 127 is to be interrupted as follows:
a) in the cases and under the terms
established by law for the interruption of the statute of limitation of the
right to action;
b) upon the date when the debtor
carries out a voluntarily action for the payment of the obligation provided in
the execution title or for the recognition of such debt, in any other way,
prior to the initiation of forced execution or during such forced execution;
c) upon the date when, during the
forced execution, a forced execution deed is performed;
d) upon the date when a document is
prepared ascertaining the taxpayer’s insolvency by law;
e) in other cases as provided by
law.
Art. 130 Effects of expiry of the
statute of limitation
(1) Provided that the execution body ascertains the expiry of the
statute of limitation of the right to request the forced execution of tax
receivables, such execution body is to proceed to the cease of measures of
realising such tax receivables and the removal thereof from the analytic
records per payers.
(2) Amounts paid by the debtor for
the account of tax receivables after the expiry the statute of limitation are
not to be refunded.
Art. 131 Limitation of the right to
request offset or refund
The taxpayers’ right to apply for
the offset of the refund of tax receivables is subject to limitation to 5 years
as of 1st January of the year following the year when the right to
offset or refund arose.
CHAPTER
VIII
Settlement
of tax receivables through forced execution
SECTION
1
General
provisions
Art. 132 Forced execution bodies
(1) In case the debtor fails to pay
voluntarily tax obligations due, the competent fiscal bodies are to proceed to
forced execution actions for the settlement of tax obligations in compliance
with this Code.
(2) Fiscal bodies that administer
tax receivables are authorised to implement precautionary measures and to carry
out the forced execution procedure.
(3) Budgetary receivables
collected, administered, accounted and used by public institutions that are
derived from own incomes, as well as those resulting from contractual legal
relations are to be executed through the own bodies, which are
authorised/competent to carry out the precautionary measures and to carry out
the forced execution procedure according to the provisions of this Code.
(4) Bodies provided in par. (2) and
(3) are to be hereinafter called forced execution bodies.
(5) In order to carry out the
forced execution procedure, the body within whose jurisdiction the traceable
goods are located is to be the competent body, while the enforcement body
within whose jurisdiction the debtor has the fiscal domicile is to co-ordinate
the entire execution procedure. In case the forced execution is carried out by
seizure, the co-ordination execution body may proceed to apply such execution
measure over a seized third party, irrespective where such party has the fiscal
domicile.
(6) Whenever a danger of disposal,
replacement or purloin of forced execution of traceable goods and income of the
debtor become obvious, the execution body within whose jurisdiction the fiscal
domicile of the debtor is located may proceed to immobilisation and forced
execution of such goods, irrespective of their location.
(7) The co-ordinating execution
body is to notify the other bodies in compliance with par. (5) in writing, by
communicating the execution title in a certified copy, as well as the status of
the debtor, the account where the amounts collected will be transferred, and
any other information that might be necessary for the identification of the
debtor and of the traceable goods or incomes.
(8) In case the execution procedure
was initiated for the same incomes or goods of the debtor, both for the
realisation of execution titles regarding tax receivables and for titles which
are executed under the conditions provided by other legal provisions, the
forced execution is to be carried aut, according to the provisions of this
Code, by the execution bodies as provided by such code.
(9) Whenever the debtor’s fiscal
domicile is ascertained as being within the territorial jurisdiction of a
different execution body, the execution title together with the execution file
are to be sent to such execution body and if necessary, the body that sent the
execution title is to be notified.
Art. 133 Forced execution in case
of joint debtors
(1) In case of joint debtors, the co-ordinating execution body is to be
the body within whose territorial jurisdiction the debtor has the fiscal
domicile or related to which there are indications that the debtor holds most
of his/her traceable incomes or goods.
(2) The co-ordinating execution body is to record the entire debit in
his/her records and is to take forced execution actions, by communicating the
entire debt amount to each execution bodies within whose territorial
jurisdiction the other co-debtors fiscal domiciles are located, and provisions
of Art. 132 are to apply.
(3) Notified execution bodies that
were informed of the debt, after recording such debt in an individual record,
are to take forced execution measures and are to communicate to the
co-ordinating execution body the amounts realised in the debtor’s account
within 10 days of such amounts realisation.
(4) If the co-ordinating execution
body that keeps the records of the entire debt ascertains that such debt amount
was realised following to forced execution actions that were carried out by
itself and by the other bodies informed according to par. (3), such
co-ordinating execution body is obliged to request in writing to the other
bodies to immediately cease the forced execution procedure.
Art. 134 Execution officers
(1) Forced execution is to be carried out by the competent forced
execution body through execution officers. Such officers must hold a job
identity card that they must show during the performance of such activity.
(2) The execution officer is to be empowered as regards the debtor and
third parties through the execution officer’s identity card and the delegation
paper issued by the forced execution body.
(3) In carrying out their duties
for the application of forced execution procedures, execution officers may act
as follows:
a) enter any business premises of
the debtor that is a legal person, or other premises where he stores goods for
the purpose of identification of goods or valuables that may be subject to
forced execution, as well as analyse the debtor’s accounting records for the
purpose of identification of third parties that owe or keep incomes or goods of
the debtor;
b) enter all rooms where goods or
valuables of the debtor that is an individual are to be found, and investigate
all places where such debtor stores goods;
c) request and check any document
or material element that can become an evidence for the determination of goods
that are under the debtor’s ownership.
(4) The execution officer may enter
all rooms that are within the domicile or residence of the individual with
his/her consent and in case of refusal, the execution body is to request the
authorisation by the competent court in accordance with provisions of the Civil
Procedure Code.
(5) The execution officer access to
the debtor’s residence, business premises or any other room, either an
individual or a legal person, may take place between 6.00 a.m. and 8.00 p.m. on
any working day. The execution procedure started may continue during the same
day or during the following days. In cases that are thoroughly grounded by the
danger of disposal of certain goods, the access to the debtor’s rooms may also
take place at hours different from those mentioned before, as well as during
non-working days, based on an authorisation according to par. (4).
(6) In the absence of the debtor or
if such debtor refuses the access to any of the premises according to par. (3),
the execution officer may enter such premises, in the presence of a
representative of the police or the military police body or of any other public
order agent and of an adult witnesses, and provisions of par. (4) and (5) are
applicable.
Art. 135 Forced execution of an
association without legal personality
For purposes of the forced
execution of tax receivables that are payable by an association without legal
personality, both movable and immovable goods of the association, as well as
the personal belongings of the members thereof can be subject to forced
execution, even if there is an execution titles issued on the name of such
association
Art. 136 Execution title and
conditions for the initiation of forced execution
(1) The forced execution of tax
receivables is only to be performed based on an execution title issued
according to provisions of this code by the competent execution body or of a
written document that is an execution title in compliance with law.
(2) The receivable title is to
become an execution title as of the date when the tax receivable becomes
outstanding by the expiry of the payment deadline as provided by law or as
determined by the competent body or in any other way as provided by law.
(3) The forced execution is only to
commence after the fiscal body sent the payment notification by which such
debtor is informed about the due amountand after a period of 15 days as of the
date of communication.
(4) The payment notification is an
act prior to the forced execution.
(5) The execution title issued
according to par. (1) by the competent execution body is to include, beside
elements provided in Art. 42, par. (2), the following: the fiscal
identification code; the fiscal domicile and any other identification data; the
amount and the nature of the amounts due and unpaid; the legal grounds of the
execution power of such title.
(6) For the debtors that are
jointly liable to pay tax receivables, a single execution title is to be
prepared.
(7) Execution titles issued by other
competent bodies as regards tax receivables are to be transmitted no later than
30 days as of the issuance thereof, for forced execution purposes, under the
law, to bodies as provided in Art. 132.
(8) In case that the execution
titles issued by bodies, other than those in Art. 33, par. (1) do not include
one of the following: the debtor’s name and surname or company name, the
personal identification number, the single registration code, the domicile or
the location, the amount due, legal grounds, the signature of the issuing body
and the proof of its communication, the execution body is to immediately return
the execution titles to the issuing bodies.
(9) In case the execution title was
sent for application by another body, such execution body is to confirm such
execution title receipt within 30 days.
(10) In case that public
institutions transmit execution titles as regards the own incomes to fiscal
bodies for purposes of forced execution, amounts realised this way are revenues
to the state budget or the local budget, as the case may be.
(11) In case that authorities of
local public administration transmit execution titles as regards the own
incomes to fiscal bodies in the subordination of the National Agency for Tax
Administration for purposes of forced execution, amounts realised this way are
to be revenues to the state budget.
Art. 137 Rules regarding forced
execution
(1) Forced execution may concern
all incomes and goods under the ownership of the debtor that are traceable
according to law, and the sale thereof is to be performed only to the extent
required for the realisation of tax receivables and of execution expenses.
(2) Goods that are subject to a
special circulation regime can be traced only by observing the conditions
provided by law.
(3) During the forced execution
procedure, use may be made successively or simultaneously of forced execution
methods as provided by this Code.
(4) The forced execution of tax
receivables is not to be subject to limitation.
(5) The forced execution is to be
performed until the settlement of the tax receivables mentioned in the
execution title, including late payment interest, penalties or other amounts
whereby due or granted by law, as well as execution expenses.
(6) In case the execution title
specifies, as the case may be, late payment interest, increased amounts or
other amounts without having determined the amount thereof, such late payment
interest, increased amounts or other amounts are to be computed by the
execution body and recorded in a minutes that is to become an execution title,
and which is to be further communicated to the debtor.
(7) A real guarantee as well as
other real burdens over goods are to have a priority degree regarding third
parties, the state inclusively, which are to be determined as of the moment
when they were made public by any of the methods provided by law.
Art. 138 Obligation to inform
In order to initiate the forced execution, the competent execution
body may use the means of evidence as provided in Art. 48 to assess the
debtor’s fortune and income. Upon the fiscal body’s request, the debtor is
obliged to provide in writing the information requested, on own responsibility.
Art. 139 Specification of the nature of debit
All forced execution documents must
include an indication on the execution title and the nature and the amount of
the debt that is subject to execution.
Art. 140 Summons
(1) The forced execution is to
commence by the communication of the summons. Unless the debt is paid within 15
days as of the summons communication, forced execution measures are to be
carried on. The summons is to be accompanied by a copy of the execution title.
(2) The summons is to include,
beside elements under Art. 42, par. (2), the following: the number of the
execution file; the amount for which the forced execution procedure is
initiated; the deadline within which the person summoned is to pay the amount
specified in the execution title, as well as the indication as regards the
consequences of the failure to observe such summon.
Art. 141 Third party rights and
obligations
The third party cannot oppose to the
seizure of a good of the debtor by invoking a pledge, a mortgage right or a
priviledge. The third party is to articipate in the distribution of amounts
that resulted from the sale of such goods, in compliance with law.
Art. 142 Valuation of goods that are subject to forced
execution
(1) Prior to the sale, such goods are to be subject to valuation. For
this purpose, the execution body is to resort to specialist persons and bodies
that are obliged to comply with their duties in this respect. Provisions of
Art. 53 in the present code are to apply correspondingly.
(2) The execution body is to update the valuation price by taking into
account the inflation rate.
(3) Whenever considered necessary, the execution body is to proceed to a
new valuation and obligations of the third party
Art. 143 Suspension, interruption
or cancellation of the forced execution
(1) The forced execution can be
suspended, interrupted or cancelled in cases as provided by this Code.
(2) The forced execution procedure
is to be suspended as follows:
a) in case that the suspension was
decided by court or by a creditor, by law;
b) upon the date of communication
as regards the approval of payment incentives;
c) in the case provided in Art.
151;
d) in other cases as provided by
law.
(3) The forced execution is to be
interrupted as follows:
a) upon the date when the debtor
was declared insolvent;
b) in other cases, as provided by
law;
(4) The forced execution is to be
cancelled if:
a) the tax obligations provided in
the execution title were fully settled, including ancillary payment
obligations, as well as execution expenses and any other amounts in the
debtor’s charge, in compliance with the law;
b) the execution title was cancelled
;
c) in other cases as provided by
law.
(5) If the seizure initiated by the
execution body leads to the debtor’s impossibility to continue his/her economic
activity with special social impacts, the tax creditor may order, upon the
request of the debtor and considering the grounds presented by the debtor,
either the temporary total suspension or the temporary partial suspension of
the forced execution through freezing bank accounts.
(6) At the same time with the
application for suspension under par. (5), the debtor is to indicate all goods
that are free of burdens for seizure purposes or other guarantees as provided
by law.
SECTION2
Forced
execution through seizure
Art. 144 Forced execution of
amounts that debtors are entitled to
(1) Any traceable amount of
revenues and cash availability denominated in ROL or in foreign currency,
securities or other intangible goods that are held and/or due in any form to
the debtor by third persons or which such persons are to owe and/or hold in the
future, based on existing legal relations are to be subject to the forced
execution by seizure.
(2) In case of traceable amounts of
revenues and cash availabilities in foreign currency, banks are authorised to
perform the conversion of the foreign currency amounts into ROL, without the
consent of the titular of the account, at the exchange rate posted by such
banks for that day.
(3) Amounts consisting of cash
income of the debtor that is an individual, which was derived in capacity of an
employee, or pensions of any type, as well as aids or allowances with special
destination are to be subject to pursuit only in compliance with the provisions
of the Civil Procedure Code.
(4) The seizure of the income of
debtors that are individuals or legal persons is to be initiated by the
execution body through a paper that is to be sent as a registered letter with
confirmation receipt to the third party that is subject to seizure, together
with a certified copy of the execution title. The debtor is to also to be
informed about the commencement of such seizure.
(5) The seizure is not to be
subject to validation.
(6) The seizure that was previously
initiated as a precautionary measure is enterinto force through the
communication of the certified copy of the execution title to the third party
that is subject to seizure and the debtor’s notification in this respect.
(7) The third party that is subject to seizure is obliged that
within 5 days as of the receipt of the communication according to par. (4) and
(6) to inform the execution body if it owes any amount of money in any form to
the debtor.
(8) The seizure is to be considered
commenced upon the date when the third party that is subject to seizure
confirms that he/she owes amounts of money to the debtor through the
notification that is sent to the execution body or upon the expiry of the
deadline provided in par. (7).
(9) After the commencement of the
seizure, the third party that is subject to seizure is obliged to immediately
withhold the amounts as required by law and transfer such withheld amounts in
the account indicated by the execution body, and at the same time to notify in
writing about the existence of other creditors.
(10) Provided that the amounts due
to the debtor are seized by several creditors, the third party that is subject
to seizure is to notify the creditors in writing about this and is to proceed
to the distribution of such amounts in accordance with the sequence of priority
provided in Art. 166.
(11) For the settlement of tax
receivables, debtors that hold bank accounts may be prosecuted by the
confiscation of bank accounts, and applying provisions of par. (4) are to apply
adequately. In such case, simultaneously with the notification of the summons
and of the execution title made to the debtor according to Art. 43, a certified
copy of such title is to be sent to the bank where the debtor’s account is
open. The debtor is also to be notified on such measure.
(12) As needed, for the payment of
the amount due on the date of the bank notification according to par. (11), the
existing amounts and future amounts obtained from daily proceeds in ROL and
foreign currency accounts are to be frozen. Beginning that moment, that means
from the date and the time of receipt of the seizure notification as regards
available funds, banks are no longer to settle payment papers received or debit
debtors accounts, and they are to accept no further payments from their
accounts until the full payment of tax obligations, except for amounts required
for salary rights.
(13) In case that the debtor makes
the payment within the deadline provided in the summons, the execution body is
to immediately notify the banks in writing as regards the partial or full
cancellation of freezing accounts and withholding amounts, otherwise, the bank
is obliged to act in compliance with par. (12).
(14) If the execution titles cannot
be settled within the same day, the banks are to follow the execution thereof
from the daily collections into the debtor’s account.
(15) Provisions in par. (10) are to
apply correspondingly.
Art. 145 Forced execution of the
third party that is subject to seizure
(1) If the third party that is subject to seizure notifies the execution
body that heshe does not owe any amount of money to the debtor under
prosecution or does not observe the provisions of Art. 144, par. (9) through
(15) and if he/she invokes other non-conformities in connection to the rights
and obligations of the parties regarding the initiation of the seizure, the
court within whose territorial jurisdiction the domicile or location of the
third party that is subject to seizure is located, upon the request of the
execution body or of other party concerned and based on the evidence
administered, is to pronounce the maintenance or the cancellation of such
seizure.
(2) The trial is to be carried out as a matter of emergency and
priority.
(3) Based on the decision to
maintain the seizure, which constitutes an execution title, the execution body
may commence the forced execution of the third party that issubject to seizure
in compliance with this Code.
SECTION3
Forced
execution of movable goods
Art. 146 Forced execution of
movable goods
(1) Any of the debtor’s movable goods are to be subject to forced
execution, unless otherwise provided by law.
(2) In the case of the debtor that
is an individual, the following cannot be subject to forced execution as they
are necessary to the life and the work of the debtor and his/her family:
a) movable goods of any kind that
serve for the continuation of studies and professional training as well as
those that are strictly necessary to carry out a profession or other occupation
on a continuous basis, including those that are necessary for the performance
of agricultural activities such as tools, seeds, fertilisers, forage and
production and working animals;
b) goods that are strictly
necessary for the personal or household use of the debtor and his/her family,
as well as religious cult objects, unless there are several such objects of the
same kind;
c) food that is necessary to the
debtor and his/her family for 2 months and if the debtor deals exclusively with
agriculture, food that is strictly necessary until the new crop;
d) the fuel that is necessary for
the debtor and his/her family for heating and for preparing food, calculated
for three winter months;
e) objects that are necessary to
handicapped persons or intended for the care of ill persons;
f) goods declared non-traceable by
other legal provisions.
(3) The goods of the debtor that is
an individual required for the performance of trade activities are not to be
excepted from forced execution.
(4) Movable goods are to be subject
to forced execution by the such movable goods seizure and sale of such movable
goods, even if they are held by a third party. The seizure is to be initiated
through a minutes.
(5) For movable goods that were
previously seized as a precautionary measure, a new seizure is not to be
required.
(6) Upon the commencement of the
forced execution, the execution officer is obliged to check if the goods
provided in par. (5) are to be found at the place of application of the seizure
and if such goods were not replaced or degraded and is to seize other goods of
the debtor in case that goods found upon the audit are not sufficient for the
settlement of such receivable.
(7) Goods are not to be seized if
their sale could cover only the forced execution expenses.
(8) Through the seizure initiated
over movable goods, the tax creditor acquires a pledge right that allows
him/her the same rights in relation with other creditors and the pledge right
according to the common law.
(9) As of the preparation of the
minutes, the seized goods are to become unavailable. During the forced
execution, the debtor can make use of such goods only with the approval of the
competent body, according to law. Failure to observe this prohibition is to
result in legal liability on the guilty party.
(10) In case no precautionary
measures were taken for the entire realisation of tax receivables and upon the
initiation of the forced execution, and the obvious danger of disposal,
replacement or purloin of the debtor’s traceable goods is ascertained, the
seizure is to be applied together with the communication of the summons.
Art. 147 Minutes of seizure
(1) The minutes of seizure is to
include as follow:
a) the name of the execution
bodies, the specification of the place, the date and the time of seizure;
b) the name and surname of the
execution officer that carries out the seizure, his/her job identity card and
delegation registration number;
c) the registration number of the
execution file, the registration date and the registration number of the
summons, as well as the execution title based on which the forced execution
procedure is carried out;
d) the legal grounds based on which
the forced execution is performed;
e) amounts due for the forced
execution of which the sequester is carried out, including amounts of late
payment interest and increased amounts, and the specification of the rate of
such late payment interest and increased amounts and the normative act based on
which the payment obligation was determined;
f) the name, surname and domicile
of the debtor that is an individual or, in his/her absence, of the adult that
lives with the debtor, the debtor’s name, surname and location, the name,
surname and domicile of other adults that were present on the application of
the seizure, as well as other identification elements of such persons;
g) description of the movable goods
seized and indication of the estimated value of each good, according to the
appraisal of the tax executor, for identification and individualisation of such
goods, and the specification of the tear and wear status and possible
particular signs of each good and if any measures were taken in respect of
keeping them unchanged, such as applying seals, taking under custody or removal
from their location or their administration or preservation, as the case may
be;
h) the specification that the
valuation would be done prior to the initiation of the sale procedure if the
execution officer could not appraise the good because of lack of the required
specialist knowledge;
i) the specification made by the
debtor regarding the existence or the lack of existence of a right to pledge,
mortgage or privilege, as the case may be, incorporated in favour of another
person for the goods seized;
j) the name, surname and the
address of the person to whom the goods were left and their storage place, as
the case may be;
k) possible objections by the
persons present at the seizure;
l) the specification that, unless
within 15 days as of the conclusion of the minutes of seizure the debtor pays
the tax obligations, the sale of the goods seized is to be initiated;
m) the signature of the execution
officer that applied the seizure and of all persons that witnessed the
sequestration. If any of such persons cannot or will not sign, the execution
officer is to mention such circumstance.
(2) A copy of the minutes of
seizure is to be handed over to the debtor against signature or is to be sent
to his/her domicile/location, and, if necessary, to the custodian who is to
sign, with the specification of receipt of the goods under care.
(3) For sale purposes, the
execution bodies are obliged to check whether the goods seized are on the place
mentioned in the minutes of seizure and if they were replaced or degraded.
(4) When seized goods found upon
the audit are not sufficient for the realisation of the tax receivable, the
execution body is to make the necessary investigations for the identification
and tracing of other goods pertaining to the debtor.
(5) If it is ascertained that the
goods are not in the place mentioned in the minutes of seizure or that they
were replaced or degraded, the execution officer is to conclude an ascertaining
minutes. For goods found upon the investigations carried out according to par.
(4), a minutes of seizure is to be concluded.
(6) If goods under pledge are also
seized for the guarantee of receivables to other creditors, the execution body
is to send a copy of the minutes of seizure to them.
(7) The execution officer that
notices that the goods are subject to a previous seizure is to record such
observations in the minutes to which a copy of such minutes of seizure is to be
attached. The same minutes of seizure is to serve to declare as seized other
goods that might be identified, if applicable.
(8) Goods recorded in the prior
minutes of seizure are also to be deemed as seized within the new forced
execution procedure.
(9) In case the enforcement officer ascertains that in relation to the
goods seized deeds, which can be considered criminal law violations were
committed, he/she is to record this in the minutes of seizure and immediately
notify the competent criminal prosecution bodies.
Art. 148 The custodian
(1) Movable goods seized may be left under the custody of the debtor, of
the creditor or of another person appointed by the execution body or by the
execution officer, as the case may be, or are to be removed and stored by such
execution officer. Whenever goods are left in the custody of the debtor or of
another person appointed according to law and whenever the danger of
replacement or degradation is ascertained, the execution officer may apply the
seal to the goods.
(2) In case the goods seized consist of amounts of money in ROL or
foreign currency, bonds, precious metal objects, precious stones, art objects,
valuable collections, such goods are to be removed and handed over to
specialist units until the following working day.
(3) The recipient of the goods under custody is to sign the minutes of
seizure.
(4) In case the custodian is not the same person as the debtor or the
creditor, the execution body is to establish remuneration in this respect,
according to the activity performed.
SECTION4
Forced
execution of real estate
Art. 149Forced execution of real
estate
(1) Real estate under the ownership of the debtor are to be subject to
the forced execution procedure.
(2) Real estate forced execution is also to fully apply to goods
ancillary to the real estate as provided in the Civil Code. Ancillary goods can
be traced only together with the real estate.
(3) In case of the debtor that is
an individual, the minimum area inhabited by the debtor and his/her family as
determined in compliance with legal norms in force cannot be subject to forced
execution.
(4) Provisions of par. (3) are not
to apply in cases when the forced execution is performed for the settlement of
tax receivables that result from committing criminal law violations.
(5) The execution officer that
carries out the seizure is to conclude the minutes of seizure according to Art.
146, par. (9) and (10) and Art. 147, par. (1) and (2).
(6) The seizure applied to the real
estate in conformity with par. (5) is to be considered a legal mortgage.
(7) The right to mortgage allows
the tax creditor in his/her relation with other creditors the same rights as
the mortgage right in respect of the provisions of common law.
(8) For real estate seized, the
execution body that initiate the seizure is to immediately request the Land
Book Office to perform the mortgage record by enclosing a copy of the minutes
of seizure.
(9) Within 10 days, the Land Book
Office is to inform the forced execution body, upon their request, of the other
real rights and burdens that have an impact on the prosecuted building and
their titular, who are to be notified by the execution body and called upon the
deadlines determined for the sale of the real estate and the distribution of
the price.
(10) The debtor’s creditors, other
than the holders of the rights under par. (9), are obliged to inform the forced
execution body in writing about the titles they hold on such real estate within
30 days as of the registration of the minutes of seizure of such real estate in
the real estate advertising records.
Art. 150 Initiation of the
seizure-administrator
(1) Upon the initiation of the seizure and during the entire forced
execution procedure, the execution body may appoint a seizure-administrator if
such measure is required for the administration of the prosecuted real estate,
of rent and of other income obtained from its administration, including for the
defence against litigation regarding such real estate.
(2) The sequestration-administrator may be the creditor, the debtor or
any other individual or legal person.
(3) The sequestration-administrator
is to record the income collected according to par. (1) at the competent units
and to file the receipt to the execution body.
(4) When a person, other than the
creditor or debtor is appointed as a seizure-administrator, the execution body
is to determine his/her remuneration, depending on the activity carried out.
Art. 151 Suspension of forced
execution of real estate
(1) After the receipt of the minutes of seizure, within 15 days of the
notification, the debtor may request the forced execution body to approve that
the full payment of tax receivables is made from the income of the traced real
estate or from other income for not more than 6 months.
(2) The forced execution procedure initiated for the real estate is to
be suspended as of the approval of the debtor’s application.
(3) For well-grounded reasons, the
forced execution body may reiterate the real estate seizure before the
expiration of the 6-month deadline.
(4) Provisions of Art. 27 are to
apply correspondingly to the debtor that is a legal person and received the
approval of suspension according to par. (2) and later on avoided the forced
execution or self-caused insolvency.
SECTION
5
Forced
execution of other goods
Art. 152 Forced execution of fruit that were not picked and of
root crops
(1) Forced execution of the fruit that were not picked and of root crops
belonging to the debtor is to be performed according to this Code as regards
forced execution of real estate.
(2) Provisions of this Code regarding movable goods are to apply to the
forced execution of fruit that were not picked and of root crops.
(3) The forced execution body is to decide, as the case may be, the sale
of the fruit that were not picked and of root crops or after cropping.
Art. 153 Forced execution of a
group of goods
(1) Movable goods and/or real estate under the debtor’s ownership can be
sold as a whole if the forced execution body deems that this way such goods may
be sold under more profitable conditions.
(2) For the forced execution of goods in par. (1), the forced execution
body is to proceed to the seizure of such goods, according to this Code.
(3) Provisions of Section 3
regarding the forced execution of movable goods and of Section4 regarding the
forced execution of real estate and Art. 160 regarding instalment payment are
to apply correspondingly.
SECTION
6
Sale
of goods
Art. 154 Sale of goods subject to
seizure
(1) In case that a tax receivable
is not settled within 15 days as of the conclusion of the minutes of seizure,
the seized goods are to be sold without further formalities, except cases when,
as by law, the cancellation of the seizure, or the suspension or the
postponement of forced execution was decided.
(2) For the performance of the
forced execution under more profitable conditions taking into account the
legitimate and immediate interest of the creditor and the rights and
obligations of the prosecuted debtor, the forced execution body is to proceed
to the sale of the seized goods in any of the ways as provided by legal
provisions in force and which compared to the actual data of the case are
proved as the most effective.
(3) For purposes of par. (2), the
competent forced execution body is to proceed to the sale of the seized goods
as follows:
a) by an agreement between parties;
b) by a consignment sale of movable
goods;
c) by a direct sale;
d) by an auction sale;
e) by other means allowed by law,
including the sale of goods through auction houses, estate agencies or
brokerage companies, as the case may be.
(4) If perishables are seized, they
can be sold under an emergency regime.
(5) If due to an appeal or an
agreement between parties, the date, the place or the time of the direct sale
or auction was changed by the forced execution body, other publications and
notices are to be made according to Art. 157.
(6) The sale of seized goods is to
be performed only by individuals or legal persons that do not have any
outstanding tax liabilities.
(7) For purposes of par. (6), the
category of unpaid tax obligations is not to include tax obligations for which
cuts, deferrals or rescheduling were allowed by law.
Art. 155 Sale of goods by agreement
between parties
(1) The sale of goods by an
agreement between parties is to be performed by the debtor himself, with the
endorsement of the execution body, so as to ensure an adequate recovery of the
tax receivable. The debtor is obliged to submit in writing to the forced
execution body the proposals made and the coverage of tax receivables
indicating the name and address of the possible buyer and the deadline within
which such buyer is to pay the price proposed.
(2) The price proposed by the buyer
and accepted by the execution body cannot be less than the valuation price.
(3) Based on the analysis of
proposals in par. (1), the forced execution body is to notify the approval by
specifying the deadline and the budgetary account where the price of the good
is to be transferred by the buyer.
(4) The jam under Art. 146, par.
(9) and (10) is to be removed after the budgetary account mentioned under par.
(3) is credited.
Art. 156 Sale of goods by direct
sale
(1) The sale of goods by direct
sale can be performed in the following cases:
a) for goods stipulated under Art.
154, par. (4);
b) before the beginning of the sale
by auction, if the tax receivable is fully recovered;
c) throughout the sale, by an
auction or after its completion, if the good was not sold and a person offers
at least the valuation price;
(2) The direct sale is to be
conducted by concluding a minutes which becomes an ownership act.
(3) If the execution body receives
more than one request under the terms in par. (1), the good is be sold to the
person that offers the highest price compared to the valuation price.
Art. 157 Sale of goods by auction
(1) For the sale of seized goods by
auction, the forced execution body is to advertise the auction at least 10 days
prior to the date established for auction.
(2) The advertising of the sale is
to be made by posting the ad regarding the sale at the premises of the
municipality within whose territorial jurisdiction the seized goods are
located, at the debtor’s location and the domicile, at the place of sale, if it
differs from the place where the seized goods are located, for the building
under sale, for the sale of real estate and through ads in a national daily of
large circulation, in a local daily, on a web page or, as the case may be, in
the Official Gazette of Romania, Part IV and through any other means as
stipulated by law.
(3) The debtor, the custodian, the
receiver and holders of real rights and liens on the traced good are to be
notified on the date, the time and the place of the auction.
(4) The ad regarding the sale is
also to comprise, beside the elements under Art. 42, par. (2) the following:
a.a. the forced execution file
number;
b.b. goods offered for sale and
their brief description;
c.c. the valuation price or the
auction beginning price for the sale by auction, for each good intended for
sale;
d.d. the specification, if
necessary, of the real rights and privileges that lien the goods;
e.e. the date, the time and the
place of sale;
f.f. the invitation for all persons
that claim a right over such goods, to notify the execution body on this prior
to the date established for sale;
g.g. the invitation for all persons
that are interested in the purchase of such goods to be present on the deadline
at the place as determined for this purpose and to submit tender offers on or
before such deadline;
h.h. the specification that the
bidders are required to submit for the sale by auction, , an auction fee
amounting to 10% of the auction beginning price on or before the sale deadline;
i.i. the specification that all
persons that are interested in the purchase of the goods must produce evidence
issued by the fiscal bodies that they do not have outstanding tax obligations;
j.j. the date of posting the ad for
sale.
(5) The auction is to be held at
the location where seized goods are kept or at the location decided by the
forced execution body, if applicable.
(6) The debtor is obliged to allow
the auction on its premises, if adequate to this purpose.
(7) In order to attend the auction,
bidders are to submit the following documents at least one day prior to the
auction:
a) the purchase offer;
b) the proof of the payment of the
auction fee, according to par. (11);
c) the proxy of the person that
represents the bidder;
d) for legal persons that are
Romanian, a copy of the single registration certificate issued by the Office of
the Register of Commerce;
e) for foreign legal persons, the
registration certificate translated into Romanian;
f) for Romanianindividuals, the
copy of the identity card;
g) for foreignindividuals, a copy
of the passport;
h) the proof issued by the fiscal
bodies that bidders have no outstanding tax obligations to such bodies.
(8) The beginning price of the
auction is the valuation price for the first auction, to be diminished by 25%
for the second auction and by 50% for the third auction.
(9) The auction is to begin from
the highest price in the written purchase bids, if higher than the price
provided in par. (8); otherwise, the auction is to begin from the latter price.
(10) The auction is to be won by
the bidder with the highest price, for a price not less than the beginning
price. In case of a single bidder, the auction committee can declare him/her as
the winning bidder, provided that the price offered is at least equal to the
beginning price.
(11) The auction fee is to amount
to 10% of the beginning price and is to be paid in ROL to the territorial unit
of the State Treasury. Within 5 days as of the date of the preparation of the
minutes of auction, the execution body is to order in writing the refund of the
auction fee that was paid by bidders that submitted purchase offers and were
not declared wining bidders; as concerns the wining bidder, the fee is to
account for a portion of the price. The auction fee is not to be refunded to
the bidders that failed to be present at the auction, to the bidder that
refused to sign the minutes of auction, nor to the wining bidder that failed to
pay the price and is to be withheld for the benefit of the execution body, to
cover the forced execution costs.
Art. 158 Auction committee
(1) Sale of seized goods by auction
is to be organised by a committee led by a chairman.
(2) The auction committee is to be
consisted of three persons appointed by the head body of the budgetary
creditor.
(3) The auction committee is to
verify and analyse the documents of participation and is to post the list of
bidders that submitted the complete participation documentation at the auction
location, at least one hour before the beginning of such auction.
(4) Bidders are to be identified
according to their sequence number on the list of participation and further on,
the chairman of the committee is to announce the auction subject as well as the
manner that the auction is to be carried out.
(5) Upon the determined deadlines,
the execution officer is first to read the sale ad and then the written offers
that were received until the date according to Art. 157, par. (7).
(6) In case there were no bidders
at the first auction or at least the beginning price was not obtained according
to Art. 157, par. (8), the execution body is to determine a new deadline within
no later than 30 days for the second auction.
(7) In case the beginning price was
not obtained during the second auction either, or there were no bidders, the
execution body is to determine another deadline, no later than 30 days, to
carry out the third auction.
(8) Upon the third auction, the
prosecuting creditors or interveners cannot adjudicate the goods offered for
sale at a price less than 50% of the valuation price.
(9) For each auction deadline, the
auction is to be advertised according to Art. 157.
(10) The auction of each good is to
be followed by the preparation of the minutes regarding the performance and the
result of such auction.
(11) The minutes in par. (10) are
also to include, beside the elements in Art. 42, par. (2), the following: the
buyer’s name and surname or the company name, as well as his/her fiscal
domicile; the registration number of the forced execution file; the
specification of the sold goods, the sale price of the good and the related
value-added tax, if applicable; all participants in the auction and the amount
offered by each participant, as well as the specification of cases when the
sale was not carried out, as the case may be.
Art. 159 Adjudication
(1) After the adjudication of the
good, the wining bidder is to pay the price diminished by the amount of the
auction fee, in ROL, in cash at a State Treasury unit or by bank transfer, no
later than 5 days after the adjudication date.
(2) In case the winning bidder
fails to pay such price, the auction sale procedure is to be resumed within 10
days after the adjudication. In such case, the wining bidder is to pay the
costs related to the new auction and the price difference, in case the price of
the new auction is lower.
(3) The wining bidder is allowed to
pay the initially offered price during the following auction; in such case, it
is to pay only costs related to the new auction.
(4) In case the good was not sold
in the following auction, the former wining bidder is to pay all costs related
to the pursuing thereof.
(5) The deadline in par. (1) is
also to apply to the sale according to the agreement between parties or by
direct sale.
Art. 160 Instalment payment
(1) As regards the sale of real
estate by auction, buyers can apply for the instalment payment, in no more than
12 monthly instalments, with an advance payment of at least 50% of the sale
price of the real estate and with an interest payable as provided by this Code.
The forced execution body is to determine the terms and conditions of such
instalment payment.
(2) The buyer cannot dispose of the
real estate before the full payment of the price and of the interest
determined.
(3) For failure to pay the advance
payment amount as provided in par. (1), provisions of Art. 159 are to apply
accordingly.
(4) The amount of interest cannot
settle tax receivables for which the forced execution was initiated and is to
be revenue to the budget corresponding to the main receivable.
Art. 161 Minutes of adjudication
(1) In the case of sale of real
estate, the forced execution body is to prepare the minutes of adjudication,
after full payment of the price or the advance payment as provided in Art. 160
par. (1), if the good was sold in instalments. Such minutes are considered
ownership acts and the transfer of ownership becomes operational as of its
conclusion. For instalment sale, a copy of the minutes of adjudication of the
real estate is to be sent to the Land Book Office, so that to record the
prohibition from disposal and lien of such good until the full payment of the
price and interest established for the real estate transferred, based on which
the record in the Land Book is operated.
(2) The minutes of adjudication
prepared according to par. (1) is also to include, beside elements under Art.
42, par. (2), the following specifications:
a.a.the number of the forced
execution file;
b.b.the number and date of the
minutes of auction;
c.c.the name and domicile or, as
the case may be, the company name and location of the buyer;
d.d.the fiscal identification code
of the debtor and the buyer;
e.e.the final price of the good and
the related value added tax, if applicable;
f.f.the manner of payment of the
price difference for instalment sale;
g.g.the good identification data;
h.h.the specification that this
document is an ownership act and can be recorded in the Land Book;
i.i.the specification that for the
creditor the minutes of adjudication is the document based on which the
execution title is issued against the buyer that fails to pay the price
difference, in case the sale was made in instalments;
j.j.the signature of the buyer or
of his/her legal representative, as the case may be.
(3) In case that the buyer whose
payment in instalment was approved fails to pay the remaining price under the
terms and conditions provided, then he/she can be subject to forced execution
in respect of the amount due, based on the execution title that was issued by the
competent execution body based on the minutes of adjudication.
(4) In case of the sale of movable
goods, within 5 days after the payment of the price, the tax executor is to
prepare a minutes of adjudication that is an ownership act.
(5) The minutes of adjudication
prepared according to par. (4) is also to include, beside elements under Art.
42, par. 2 and par. (2) of this article, except for letter f), h) and i), the
specification that such document is not an ownership act. A copy of the minutes
of adjudication is to be sent to the co-ordinating execution body and to the
buyer.
Art. 162 Resumption of sale
procedure
(1) If the goods subject to forced
execution could not be sold as provided in Art. 154, such goods may be returned
to the debtor by maintaining the blocking measure until the expiry ofthe
statute of limitation. The execution body may resume the sale procedure at any
time within this deadline and may appoint, maintain or change the
seizure-administrator or the custodian, as the case stays.
(2) If debtors whose goods were
supposed to be returned according to par. (1) relocated their stated fiscal
domicile and cannot be identified further to the investigations, the fiscal
body is to proceed to their notification according to the procedure of communication
by advertising in compliance with Art. 43, par. (3), that the good in question
is maintained available to the owner until the expiry of the statute of
limitation, after which the good is to be sold according to legal provisions
regarding the sale of the goods entered in the state private ownership, unless
otherwise provided by law.
(3) Actions in par. (2) are to be
recorded in minutes prepared by the fiscal body.
(4) In case of real estate, the
competent court acting upon ascertaining the state private ownership right over
such good is to be notified based on the minutes provided in par. (3),
according to law.
Art. 163 Giving into payment
(1) Throughout the entire forced
execution procedure over the real estate of the debtor that is a legal person,
including the period when the sale procedure can be resumed according to Art.
162, par. (1), tax receivables that are administered by the Ministry of Public
Finance and that of the local budgets may be settled on the debtor’s request,
with the approval of the tax creditor, by transferring the real estate that is
subject to forced execution under the public state ownership or, as the case
may be, under the ownership of the administrative-territorial unit of real
estate that is subject to forced execution
(2) Provisions of par. (1) also
apply in the case that the forced execution is suspended as a result of the
approval of a tax payment incentive, according to Art. 121 of this code..
(3) For purposes of par. (1), the
body empowered to carry out the forced execution procedure according to law is
to send the application together with a copy of the forced execution file and
its proposals to the committee appointed by an order of the Minister of Public
Finance or, as the case may be, by the administrative-territorial unit that is
to decide upon its manner of solution and to order the body empowered to carry
out the forced execution procedure to conclude the minutes regarding the
transfer of the real estate under the state public ownership and to settle the
tax receivables administered by the Ministry of Public Finance or the local
ones for which the procedure was initiated.
(4) The Committee provided in par.
(3) is to decide the settlement of tax receivables by the transfer under the
public ownership of the real estate subject to the forced execution, only under
the conditions that a request to take over such goods under administration
exists, according to law.
(5) The real estate is to remain
unavailable during the period between the submission of the debtor’s application
and the date of conclusion of the minutes regarding the transfer under the
public ownership of the real estate under the state public ownership.
(6) The minutes of transfer of the
real estate under the public ownership is to be an ownership act. The operation
of transfer under public ownership as a result of giving into payment is to be
exempt from the value-added tax.
(7) Real estate that is transferred
under the public ownership according to Art. (1) may be given under
administration according to law.
(8) In case that the real estate transferred under the public
ownership according to this Code were claimed and returned to third parties, by
law, the debtor that is a legal person is to pay the amounts settled in such a
manner.
CHAPTER
IX
Expenses
Art. 164Forced execution expenses
(1) Expenses related to the forced
execution are to be borne by the debtor.
(2) Expenses related to the forced
execution are to be determined by the forced execution body through a minutes
that is an execution title according to this Code, based on documents related
to expenses incurred.
(3) Expenses related to forced
execution as regards tax receivables are to be paid by the forced execution
bodies from their budgets.
(4) Expenses related to forced
execution, which were not based on documents that certify that such expenses
were incurred for forced execution purposes, are not to be borne by the debtor.
(5) Amounts recovered in the
account of the forced execution expenses are to become revenue to the budget
from which they were paid, except amounts of expenses of forced execution of
tax receivables that are administered by the Ministry of Public Finance that
are revenues to the State budget, unless otherwise provided by law.
CHAPTER
X
Release
and distribution of amounts realised by forced execution
Art. 165 Amounts realised by forced
execution
(1) The amount that was realised
further to the forced execution procedure is to include all the amounts
collected after the notification of the summons in any of the ways as provided
by this Code.
(2) Tax receivables recorded in the
execution title are to be settled by amounts realised according to par. (1)
according to their length, first the main receivable and then its ancillaries.
(3) Provided that the amount that
is both a tax receivable and an execution expense is less than the amount
obtained from forced execution, the difference is to be offset according to
Art. 111 or is to be refunded upon the debtor’s request, as the case may be.
(4) The debtor is to be immediately
notified on the amounts to be refunded.
Art. 166 Distribution sequence
(1) In case the forced execution
procedure was initiated by several creditors or when until the realisation and
distribution of the amount resulting from execution other creditors also
submitted their titles, the body under Art. 132 is to resort to the
distribution of such amount according to the priority sequence, unless
otherwise provided by law:
a) receivables consisting of
expenses of any kind made for the prosecution and preservation of the goods
whose price is distributed;
b) receivables consisting of
salaries and other assimilated duties, pensions, amounts for unemployment,
according to law, aids for the support and the care of children, for maternity
care, for temporary work incapacity, for the prevention of illness, for the
health recovery or improvement, death benefits granted within the state social
security system, as well as receivables for the obligation to repair damages
caused by death, damage of body integrity or of health;
c) receivables that result from
support obligations, child benefits or payment liabilities of other regular
amounts intended to ensure bare living;
d) tax receivables from taxes,
fees, contributions and other amounts provided according to law that are due to
the State budget, the State Treasury budget, the state social security budget,
local budgets and special funds budgets;
e) receivables that result from
loans granted by the state;
f) receivables that consist of
damages for the repair of damages brought to public ownership through illegal
deeds;
g) receivables that result from
bank loans, from supply of products, supply of services or performance of
works, as well as from rent;
h) receivables that consist of
fines to the State budget or the local budgets;
i) other receivables.
(2) For the payment of receivables
that have the same priority, unless otherwise provided by law, the amount from
execution is to be distributed among creditors proportionally to their
receivable.
Art. 167 Rules regarding release
and distribution
(1) Tax creditors that have a
privilege by law and that comply with the condition of advertising or owning a
movable good are to have priority, in conditions provided in Art. 137 par. (7)
in the distribution of the amount resulting from the sale compared to other
creditors that hold real guarantees over such good.
(2) Ancillaries of the main
receivable as mentioned in the execution title are to observe the priority
sequence of the main receivable.
(3) In case of the sale of goods
burdened by a pledge right, mortgage or other real rights that the forced
execution body became aware of according to Art. 147, par. (6) and Art. 149,
par. (9), such body is obliged to notify ex officio the creditors in whose
favour such burdens were preserved in order to allow them to participate in the
price distribution.
(4) Creditors who did not
participate in the forced execution procedure may submit their titles in order
to participate to the distribution of amounts obtained from the forced
execution only until the date of the preparation by the execution body of the
minutes regarding the release or the distribution of such amounts.
(5) The release or the distribution
of the amount resulting from the forced execution is to be performed only after
the expiry of 15 days after the submission of the amount, when the execution
body proceeds, as the case may be, to the release or the distribution of such
amount, by notifying the parties and the creditors that submitted their titles.
(6) The release or the distribution
of the amount resulted from forced execution is to be immediately recorded by
the execution officer in minutes that is to be signed by all entitled parties.
(7) The person that is dissatisfied
with the release or the distribution of the amount resulted from forced
execution may request the execution officer to record such objections in the
minutes.
(8) After the preparation of the
minutes in par. (6), no creditor is to be entitled anymore to request to
participate in the distribution of amounts resulted from the forced execution.
CHAPTER
XI
Appeal
to forced execution
Art. 168 Appeal to forced execution
(1) Persons interested may appeal
against any act of execution that is performed by the violation of provisions
of this Code by execution bodies as well as if such bodies refuse to carry out
an execution act in according to law.
(2) The appeal may also be directed
against the execution title based on which the execution was initiated, in case
that such title is not a decision made by a court or other judicial authority
and if for such appeal there is no other procedure stipulated by law.
(3) The appeal is to be registered
at the competent court and is to be solved under the emergency procedure.
Art. 169 Appeal deadline
(1) The appeal may be submitted
within 15 days under the sanction of nullity as of the date when:
a) the applicant was informed of
the execution or the execution act he is contesting, from the communication of
the summons or from other notifications received or, in the lack thereof, upon
the performance of execution proceedings or in any other way;
b) the applicant was informed
according to letter a) of the refusal of the execution body to carry out the
forced execution procedures;
c) the party interested was
informed according to letter a) of the release or the distribution of the
amounts he is contesting.
(2) The appeal whereby a third
party claims to have an ownership right or other real right over the good
traced may be entered no later than 15 days as of the forced execution performance.
(3) Failure to submit the appeal
within the deadline provided in par. (2) is not to impede the third party from
realising his/her right based on a separate application, according to the
common law.
Art. 170 Carrying out appeal
(1) Upon carrying out anappeal, the
court is also to summon the execution body within whose territorial
jurisdiction the traced goods are located or in case of execution by seizure,
the third party seized is located or domiciled.
(2) On request of the interested
party, the court may decide upon the execution appeal with regard to the
distribution of the goods held by the debtor under joint ownership with other
persons.
(3) If the court accepts the
execution appeal, as the case stays, it may decide the cancellation of the
execution title appealed or its correction, the cancellation or the end of the
execution itself, the cancellation or the clarification of the execution title
or the performance of the execution act whose performance was refused.
(4) In case of cancellation of the
appealed execution act or in case of completion of the execution itself and
cancellation of the execution title, the court may decide by the same decision
to return to the rightful person the lawful amount from the sale of goods or
from withholdings by seizure.
(5) In case of rejection of the
appeal, upon the request of the execution body the applicant may be obliged to
pay indemnities for damages caused due to the delay in execution, and when the
appeal was submitted in bad faith, the applicant is to also be obliged to pay a
fine between ROL 500.000 and ROL 1.000.000.
CHAPTER
XII
Settlement
of tax receivables by other means
Art. 171 Insolvency
(1) Tax receivables that are traced
by execution bodies may be deducted from records if the debtor concerned is
insolvent.
(2) The insolvency procedure
applies in the following cases:
a) when the debtor has no revenues
or goods that can be traced;
b) when, after the completion of
the forced execution against the debtor, unpaid debts remain;
c) the debtor vanished or died
without leaving any fortune;
d) the debtor cannot be found at
the latest known domicile or premises and no revenues or goods that may be
subject to forced execution can be found therein or in other locations where
there are indications that the debtor has had any fortune
e) when, by law, the debtor that is
a legal person ceases to exist and tax receivables remained unpaid.
(3) For tax receivables of debtors
that are declared insolvent, the head of the forced execution body is to decide
to write out such receivable from current records and its entry in a separate
record.
(4) Whenever debtors are
ascertained to have obtained incomes or acquired goods that can be traced,
after insolvency was declared, the forced execution officers are to take
actions required for re-debiting such amounts and for the forced execution.
Art. 172 Initiation of the judicial
reorganisation or the bankruptcy procedure
(1) The execution body is obliged
to request competent law courts to begin the procedure of judicial reorganisation
or of bankruptcy for tax receivables that are owed by traders, consumption or
craftsmen associations/co-operatives or individuals, under the law.
(2) Requests of fiscal bodies
regarding the initiation of the bankruptcy or the judicial reorganisation
procedures are to be submitted to law courts and are to be exempt from the
submission of any bail.
Art. 173 Cancellation of tax
receivables
(1) In exceptional cases and for
good reasons, the Government or local deliberative bodies, by a decision, may
approve the cancellation of certain categories of tax receivables.
(2) If execution expenses,
exclusive of mail-related expenses, exceed the tax receivables subject to
forced execution, the head of the forced execution body may approve the
cancellation of the debts concerned. Expenses for sending summons by mail are
to be covered by the fiscal body.
(3) Outstanding tax receivables on
the balance on 31st December of the year that are less than ROL
100.000 are to be cancelled. Annually, the thresholds of the tax receivables
that can be cancelled are to be established by a Government decision.
(4) In case of tax receivables that
are owed to local budgets, the amount provided in par. (3) is the maximum limit
up to which deliberative authorities may determine by a decision the threshold
of tax receivables that may be cancelled.
TITLE
IX
Solution
of appeals against fiscal administrative acts
CHAPTER
I
Right
to appeal
Art. 174 Possibility to contest
(1) Against the receivable title,
as well as against other administrative acts appeal may be made, according to
law. The appeal is an administrative manner to contest and does not remove the
right to act of the person that deems to have been harmed in his/her rights,
under the law.
(2) Only the person that deems to
have been harmed in his/her rights by a fiscal administrative act or by its
absence has the right to submit an appeal.
(3) The taxation base and the tax,
the fee or the contribution as assessed by the tax decision are always to be
appealed at the same time.
(4) Also tax decisions by which no
taxes, fees, contribution or other amounts owed to the general consolidated
budget are assessed may be contested.
(5) In case of decisions regarding
the taxation base, decisions regulated by Art. 86, par. (1), the appeal may be
submitted by any person that participates in the realisation of income.
(6) Taxation bases ascertained
separately in a decision as regards the taxation base may be contested only by
the appeal against such decision.
Art. 175 Form and content of appeal
(1) The appeal is to be submitted
in writing and is to include as follows:
a)a) the applicant’s identification
data;
b)b)the subject of the appeal;
c)c) grounds de facto and de iure;
d)d)grounding evidence;
e)e) the signature of the applicant
or his/her representative and the stamp, in case of legal persons. The evidence
of the by proxi capacity of an applicant, either a legal person or an
individual, is to be produced according to law.
(2) Subject to appeal are to be
only amounts and measures that were assessed and specified by the fiscal body
in the receivable title or the contested fiscal administrative act, except the
appeal against the unjustified refuse to issue the fiscal administrative act.
(3) The appeal is to be submitted
to the fiscal body or the customs body whose fiscal administrative act is
contested and is not to be subject to stamp fees.
Art. 176 Deadline for submitting an
appeal
(1) The appeal is to be submitted
within 30 days as of the communication of the fiscal administrative act, under
the sanction of nullity.
(2) In case the competence for
solution does not stay with the body that issued the appealed fiscal
administrative act, the appeal is to be submitted by such body within 5 days
after the registration to the competent solution body.
(3) In case the appeal is submitted
to a fiscal body that is not competent, such appeal is to be submitted within 5
days of receipt to the fiscal body that issued the appealed fiscal
administrative act.
(4) If the fiscal administrative
act does not include elements under Art. 42, par. (2), letter i), the appeal
may be submitted within 3 months after the notification of the fiscal
administrative act to the competent solution body.
Art. 177 Withdrawal of an appeal
(1) The appeal can be withdrawn by
the applicant until its solution. The competent fiscal body is to communicate
the applicant the decision that confirms the waiver to such appeal.
(2) Withdrawal of appeals does not
trigger the loss of the right to submit a new appeal within the deadline
generally allowed for appeals.
CHAPTER II
Competence of solving appeals. Solution
decision
Art. 178 Competent body
(1) Appeals submitted against tax
decisions, fiscal administrative acts assimilated to tax decisions as well as
receivable titles regarding customs liability are to be solved as follows:
a) appeals regarding taxes, fees,
contributions, customs liabilities and their ancillaries amounting to less than
ROL 5 billion are to be solved by the competent bodies that are established at
the level of the general directorate where such applicants have their fiscal
domicile or by the fiscal body that is established at Art.33 par.(3), as the
case may be;
b) appeals that are submitted by
large taxpayers whose subject are taxes, fees, contributions, customs duties,
as well as ancillaries thereof, whose amount is less than ROL 5 billion, are to
be solved by competent bodies that are established within such general
directorates for the administration of large taxpayers;
c) appeals regarding taxes, fees,
contributions, customs liability and their ancillary whose amount equals or
exceeds ROL 5 billion and those submitted against documents issued by the
central bodies are to be solved by the competent solution bodies set up at
central level;
(2) Appeals submitted against other
fiscal administrative acts are to be solved by issuing fiscal bodies.
(3) Appeals submitted by those that
deem to have been harmed by the unjustified refusal are to be solved by the
higher hierarchical body to the fiscal body that is competent to issue such
act.
(4)Appeals submitted against fiscal
administrative acts issued by authorities of local public administration are to
be solved by such authorities of local public administration.
(5) Amounts provided in par. (1)
are to be updated by a Government Decision.
Art. 179 Solution decision or
provision
(1) For the solution of appeals,
the competent body is to decide upon by a decision or a provision, as the case
may be.
(2) The decision or the provision
issued for the solution of appeals is to be final with respect to
administrative appeal methods.
Art. 180 Form and content of the
decision to solve an appeal
(1) The decision to solve appeals
is to be issued in writing and is to comprise as follows: the preamble, the
reasons/grounds and the framework.
(2) The preamble is to include: the
name of the body that is in charge with the solution, the name and the surname
of the applicant, his/her fiscal domicile, the registration number of the
appeal at the competent solution authority, the subject of such cause and the
summary of the parties arguments when the competent solution body is not the
issuing body of the appealed document.
(3) The reasons are to include the
grounds de iure and de facto that led to the conviction of the solution body
that is competent for the issuance of the decision.
(4) The framework is to include the
solution decided, the appeal solution method, the term within which it can be
exerted by the competent court.
(5) The decision is to be signed by
the head of the General Directorate, the general manager of the competent body
established at central level, the head of the issuing fiscal body of the
appealed administrative act or his/her substitutes, as the case may be.
CHAPTER
III
Procedural provisions
Art. 181 Involvement of other
persons in the solution procedure
(1) The competent solution body may involve ex officio or
upon request, for the solution of appeals, as the case may be, other persons
whose legal tax interest is harmed further to the issuance of the decision to
solve the appeal. Prior to involving other persons, the applicant is to be
called for a hearing according to Art.9.
(2) The persons that participate in
the realisation of income, according to Art. 174, par. (5) and did not submit
an appeal are to be involved ex officio.
(3) The person involved in the
appeal procedure is to be informed of all requests and declarations of the
other parties. This person is to have the rights and duties of the parties as a
result of the fiscal legal relation that is subject to the appeal and is
entitled to submit his/her own applications.
(4) Provisions of the Civil
Procedure Code regarding the forced and voluntary intervention are to be
applicable.
Art. 182 Solution of appeal
(1) In the solution of appeal, the
competent body is to check the grounds de facto and de iure underlying the
issuance of the fiscal administrative act. The appeal is to be analysed as
compared to the parties’ arguments, the legal provisions invoked and documents
existing in the file of such cause. The appeal is to be solved within the
limits of the notification.
(2) The solution body that is
competent for the clarification of the cause may request the point of view of
the specialist departments within the ministry or within other institutions and
bodies.
(3) The solution of appeal is not
to lead to a more difficult case for the applicant by his/her own appeal
manner.
(4) The applicant, the interveners
or their empowered persons may submit new evidence for the support of the
cause. In such case, the fiscal body that issued the appealed fiscal
administrative act or the body that carried out the audit activity, as the case
may be, is to be given the possibility to pronounce upon such aspects.
(5) The competent solution body is
to decide first on the exceptions of procedure and then on the content thereof,
and when they are ascertained grounded, the thorough analysis of the cause is
no longer to be carried out.
Art. 183 Suspension of procedure of
solution of appeal by administrative means
(1) The competent solution body may
suspend through a well-grounded decision the solution of the cause whenever:
a) the body that carried out the
audit activity notified the competent body regarding the existence of
indications on committing a criminal law violation whose determination may have
a decisive impact on the solution which is about to be passed under an
administration procedure;
b) the solution of the cause
depends in whole or in part on the existence or the non existence of a right
that is subject to another ruling.
(2) The competent solution body may
suspend the procedure upon request if there are grounded reasons. Upon the
approval of suspension, the competent solution body is to determine the
deadline until when the procedure is suspended as well. The suspension may only
be requested once.
(3) The administration procedure is
to be resumed on the termination of the reason that triggered the suspension
or, as the case may be, upon the expiry of the deadline determined by the
competent solution body according to par. (2), irrespective if the reason that
led to the suspension ceased or not.
Art. 184 Suspension of execution of
a fiscal administrative act
(1) Submitting the appeal by
following the administrative appeal way is not to suspend the execution of the
fiscal administrative act.
(2) The appeal solution body may
suspend the execution of the contested fiscal administrative act until solving
such appeal, upon the applicant’s well-grounded request.
(3) If the execution of a decision
regarding the taxation base is suspended, then the execution of subsequent tax
decisions is also to be suspended.
(4) The solution authority may
decide the initiation of precautionary measures by the competent fiscal body
under the conditions of this Code.
CHAPTER
IV
Solutions
regarding appeal
Art. 185 Solutions regarding appeal
(1) By decision, the appeal may be
admitted as a whole or in part or rejected.
(2) In case the appeal is approved,
a decision is to be made on the total or the partial cancellation of the
appealed document.
(3) By decision, the appealed
fiscal administrative act can be totally or partially terminated, and in this
case a new fiscal administrative act is to be concluded by considering the
reasons of the solution decision.
(4) By decision, a solution to a
cause may be suspended in compliance with provisions of Art. 183.
Art. 186 Rejection of appeal for failure to comply with procedural
conditions
(1) In case the competent solution body notices a failure to comply with
a procedural condition, the appeal is to be rejected without resorting to the
analysis the content of such cause.
(2) The appeal cannot be rejected if it bears an inaccurate name.
Art. 187 Communication of decision and appeal method
TITLE
X
Sanctions
(1) The theft, the substitution, the degradation or the disposal by the
debtor or by third parties of seized goods in conformity with provisions of
this code is to be punished by prison from 6 months to one year or by fine
between ROL 50.000.000 and ROL 100.000.000.
(2) Withholding and failure to remit by payers of fiscal obligations of
amounts of withholding taxes or contributions more than 30 days after the
deadline are criminal law violations to be punished by prison from 6 months to
2 years or by fine between ROL100.000.000 and ROL 500.000.000.
Art. 189 Civil law violations
a) the failure to submit statements regarding the
fiscal registration or specifications within the legal deadlines;
b) the failure to submit tax returns within the legal deadlines, in
compliance with provisions of Art. 78;
c) the failure to observe obligations in compliance with provisions of
Art. 54 and Art. 55 par. (2);
d) the failure to observe the obligation in compliance with provisions
of Art. 102, par. (8);
e) the failure to enforce measures in compliance with provisions of Art.
102, par. (9);
f) the failure to observe the obligation as regards the specification of
the fiscal identification code on documents, in compliance with provisions of
Art. 70, par. (1);
g) the failure to observe liabilities regarding the completion and
retaining fiscal files by payers of salaries and income assimilated to
salaries;
h) the failure to observe obligations as regards the transmission to the
competent fiscal body or, as the case may be, to third parties of forms and
documents as provided by fiscal law, other than tax declarations and statements
regarding fiscal registration or specifications;
i) the banks failure to observe liabilities regarding the provision of
information and refunding obligations in compliance with provisions of this
Code;
j) the failure to observe obligations of the third party that is subject
to seizure, in compliance with provisions of the Fiscal Procedure Code;
k) the failure to observe the notification obligation in compliance with
provisions of Art. 149 par. (9)
l) the refuse of the debtor that is subject to forced execution to hand
over the goods to the execution body for seizure purposes or to make such goods
available for identification and valuation purposes.
(2) The civil law violation mentioned in par. (1) is to be sanctioned as
follows:
a) by a fine between ROL 15.000.000 and ROL 30.000.000, forindividuals,
and fine between ROL 50.000.000 and ROL 100.000.000, for legal persons, in case
of committing the deeds as provided in par. (1) letter c);
b) by a fine between ROL 500.000 and ROL 5.000.000, for individuals, and
fine between ROL 5.000.000 and ROL 25.000.000, for legal persons, in case of
committing the deeds as provided in par. (1) letter d);
c) by a fine between ROL 5.000.000 and ROL 15.000.000, for individuals,
and fine between ROL 25.000.000 and ROL 50.000.000, for legal persons, in case
of committing the deeds as provided in par.(1) letter e);
d) by a fine between ROL 500.000 and ROL 15.000.000, for individuals,
and fine between ROL 5.000.000 and ROL 100.000.000, for legal persons, in case
of committing the deeds as provided in par. (1) letters a), b), f) - l).
(3) In case of individuals, the failure to submit the income tax
declarations within the deadlines provided by law is to be treated as a civil
law violation and is to be sanctioned with a fine between ROL 100.000 and ROL
1.000.000.
(4) The failure to submit tax declarations for the obligations due to local
budgets is to be sanctioned according to Law no. 571/2003 regarding the Fiscal
Code.
(5) Amounts collected under the conditions of this title are to be
revenues to the state budget or local budgets, as the case may be.
(1)The following facts are to be considered civil law violations:
a) producing excisable products under the scope of the fiscal warehouse
regime, outside a fiscal warehouse authorised by the competent fiscal body;
b) holding excisable products outside the suspensive regime, without
having them entered under the excising system according to Title VII in the
Fiscal Code;
c) failure to advise the competent fiscal body within the legal deadline
about modifications of initial data taken into account upon the issuance of the
authorisation;
d) holding excisable products that are subject to marking outside the
fiscal warehouse or the sale of such products on the territory of Romania
without being marked or being marked inadequately or by false marks;
e) failure to observe the work schedule of the fiscal warehouse, as
approved by the competent fiscal body;
f) practising, by producers or importers, sale prices that are less than
costs incurred by the production or the import of excisable products sold, to
which the excise tax and the value-added tax are to be added;
g) failure to mention of a distinct manner the amount of the excise tax
or the tax on oil and natural gas from domestic production in invoices, in cases
provided by Title VII in the Fiscal Code;
h) failure to use fiscal documents as provided by Title VII of the
Fiscal Code;
i) failure to perform, through banking units, settlements between
suppliers and purchasers of excisable products that are legal persons;
j) the location of means of measurement of the production and of the
alcohol concentration and distillatesin other places than those specifically
mentioned in Title VIII in the Fiscal Code or the damage of seals applied by
the fiscal surveyor and the failure to notify the fiscal body in the case of
damaging thereof;
k) failure to apply for the appointment of the fiscal surveyor in order
to unseal the tank or containers in which the alcohol and distillatesare
transported in bulk;
l) transport of ethyl alcohol and distillatesin tanks or containers that
do not bear the fiscal surveyor’s seals, have deteriorated seals or are not
accompanied by the accompanying document as provided in Title VII in the Fiscal
Code;
m) production of sanitary alcohol by persons, other than authorised
warehouse keepers for the production of ethyl alcohol;
n) sale in bulk, on the domestic market, of the sanitary alcohol;
o) circulation and sale in bulk of the refined ethyl alcohol and
distillatesfor other purposes than those specifically provided in Title VIII in
the Fiscal Code;
p) failure to accurately record in the special register of quantities of
alcohol and distillatesimported in bulk;
q) failure to accurately record at the territorial fiscal bodies of
statements regarding the manner of sale of the alcohol and distillates ;
r) failure to apply at the territorial fiscal body in order to unseal
production outfits, as well as failure to record in the special register
intended for this purpose of information regarding real capacities of
distillation, the date and the time of sealing and unsealing stills or other
outfitsfor the production of plum brandy and fruit brandies;
s) practising retail sale prices that are less than minimal prices as
determined for each product, according to Title VIII in the Fiscal Code, to
which the value-added tax is to be added;
ş)
sale for prices higher than the stated maximum retail sale prices of products
for which such prices were determined;
t) sale of products that are not mentioned in the lists of maximum
retail sale prices stated by legal persons that are producers and importers;
ţ)
the refuse of legal persons that are producers of cigarettes to take over and
destroy, under the law conditions, seized quantities of tobacco;
u) the use of mobile pipes, flexible hoses or other similar pipes, the
use of containers that are not calibrated, as well as the placement of taps or
valves through which quantities of alcohol or distillates may be extracted
without being metered;
v) sale in bulk and use of the raw materials, for the production of
alcohol beverages, ethyl alcohol and distillateswith alcohol concentration less
than 96% in volume;
x) sale through pumps of distribution stations of
mineral oils, other than those in the category of liquid petroleum gas, petrol
and gas oil, that conform to the national standards of quality;
y) operation of outfits for the production of ethyl alcohol or
distillates, outside the work schedule of the fiscal warehouse, as approved by
the competent work schedule as approved by the Committee of authorisation of
fiscal warehouses within the Ministry of Public Finance.
z) production or sale of excisable products in a fiscal warehouse during
the period that the authorisation was revoked or cancelled, while the
authorisation committee did not issue a special authorisation for the sale of
stocks of products.
(2) Civil law violations as provided in par. (1) are to be sanctioned by
fine between ROL 200.000.000 and ROL 1.000.000.000 lei, as well as by the
following:
a) seizure of product, and in case that such products were sold,
confiscation of amounts resulted from such sale, in cases provided in lett. a),
b), d), l), m), n), o), x),y) and z);
b) seizure of tanks, containers and transport means that are used for
the transport of ethyl alcohol and distillates, in the case provided in lett.
l);
c) revocationof authorisation of fiscal warehouse or, as the case may
be, the stop of activity for a period between 1 and 3 months, for cases
provided in lett. d), e), j), m), n), o), u), x) ,y) and z). The application
for a new authorisation may only be submitted after a period of at least 6
months after the date of revocation.
Art. 191 Ascertainment of civil law violations and application of
sanctions
(1) The ascertainment of civil law violations and application of
sanctions are to be made by the competent fiscal body.
(2) Ascertaining and sanctioning facts that constitute civil law
violations according to Art. 190 are to be performed by the
specialist personnel within the Ministry of Public Finance and its territorial
units.
(3) Civil law violations as provided in Art. 189 par. (1) lett. b) apply
for facts ascertained after the date of entry into force of this code.
(4) In the case of the application of fine provided according to Art.
189 and Art. 190, the taxpayer has the possibility to pay a half of the minimum
fine as provided by this code within 48 hours and the ascertaining agent is to
mention such possibility in the minutes of ascertainment and sanction of such
civil law violation
Art. 192 Update of fines amounts
The limits of the fines for civil law violations as provided in this
Code may be updated annually, depending on the inflation rate, by a Government
Decision, upon the proposals of the Ministry of Public Finance.
Art. 193 Applicable provisions
Provisions of this Title are to be completed by legal provisions
regarding the legal regime of civil law violations.
TITLE
XI
Final
and transitional provisions
Art.194 Provisions regarding the customs regime
Failure to pay within the deadline taxes, fees or other amounts payable,
under the law, in customs is to trigger the prohibition to carry out other
customs operations until the integral settlement thereof.
Art. 195 Provisions regarding civil servants within the fiscal bodies
(1) During carrying out their job duties, civil
servants within the fiscal bodies are vested with the power of public authority
and are to benefit of protection according to law.
(2) The state and the administrative-territorial units are liable from a
patrimonial point of view for prejudices caused to the taxpayer by civil servants
within the fiscal bodies while carrying out their job duties.
(3) The liability of the state and the administrative-territorial units
does no relieve the civil servants within the fiscal bodies from their
liability in case of carrying out their job duties in bad faith or in severe
negligence.
(4) The Ministry of Public Finance may set up funds for granting
incentives for the personnel from the own system and subordinate units, as the
case may be, by withholding a 5 % rate of amounts collected through forced
execution according to this Code, of amounts collected within the judicial
reorganisation and the bankruptcy procedure, as well as from sources as
regulated by other normative acts.
(5) The system of granting incentives to the personnel from the own system
and units subordinated to the Ministry of Public Finance that carry out
activities under par. (4) is to be set similarly to the salary system of the
budgetary personnel and is to be approved by an order of the Minister of Public
Finance.
(6) Administrative-territorial units, in their capacity of local fiscal
creditors, may set up funds on monthly basis for granting incentives to the
personnel in specialist departments that have duties in the administration of
local tax receivables, by the application of a 5% rate to amounts collected as
follows:
a) by forced execution, by law;
b) within the procedure of judicial reorganisation and bankruptcy;
c) from local taxes and fees determined as a result of the ascertainment
of taxable or feeable goods or services, assessed in addition to those assessed
by the taxpayer, as resulted from fiscal audits carried out and from late
payment interest and increased amounts related thereof.
(7) Approval of incentives as provided in par. (6) is to be made by the
credit holder, upon the proposal by the head of the specialist department.
(8) The payment of approved incentives is to be made during the current
month for the prior month.
(9) Amounts constituted according to par. (6), which remain not spent by
the end of the current year, are to be carried over and are to have the same
destination during the following year.
Art. 196 Normative acts for application
(1) For the application of this code, the Government is to adopt
methodological norms for application, within 30 days as of the date of the
publication of the law for the approval of this code in the Official Gazette of
Romania.
(2) Forms required and such forms instructions for using thereof for the
administration of tax receivables are to be approved by an Order of the
Minister of Public Finance.
(3) Forms necessary and instructions for using thereof for the
administration of local taxes and fees are to be approved by a joint order of
the Minister of Administration and Home Affairs and the Minister of Public
Finance.
(4) Forms necessary and instructions for using thereof as regards the
realisation of receivables of the general consolidated budget that are
administered by other bodies are to be approved by an order of such body
competent minister or the head of such public institution, as the case may be.
Art. 197 Fiscal bodies exemption from payment of fees
Fiscal bodies are to be exempt from fees, tariffs, commissions or bails
for applications, actions or any other actions they must take for the
administration of tax receivables, except for those regarding the communication
of the fiscal administrative act.
Art. 198 Registration of receivables in Electronic Archive of Securities
Guarantees
For fiscal budgetary receivables that are administered by the Ministry of
Public Finance, such ministry is authorised as an operator that through its
territorial units that act as empowered agents records the obligations included
in the execution titles in the Electronic Archive of Securities Guarantees.
Art. 199 Provisions regarding deadlines
(1) Applications submitted by the taxpayer according to this Code are to
be solved by the fiscal body within 45 days as of registration thereof, unless
otherwise provided by law.
(2) Provided that for the solution of the application, relevant
additional information is required for making a decision, the deadline is to be
extended by the period between the request date and the receipt date of the
information required.
(3) Current deadlines upon the date of entry into force of this Code are
to be computed according to legal norms that are effective upon such deadlines
initiation date.
Art. 200 Seizures
(1) Seizures according to law are to be carried out by bodies that
ordered such seizure. Seizures ordered by prosecutors of by law courts are to
be carried out by the Ministry of Public Finance, the Ministry of
Administration and Home Affairs, or, as the case may be, by other public
authorities empowered by law, by their competent bodies, as established by a
joint order of heads of the institutions in question, and the sale is to be
made by competent bodies of the Ministry of Public Finance, according to law.
(2) Amounts seized and those derived from the sale of seized goods,
except for expenses incurred by the performance and the sale thereof are to
become revenue to the State budget or the local budget, as the case may be,
according to law.
Art. 201 Transitional provisions regarding fiscal registration
(1) Persons under Art. 68, par. (4) that are already registered, are
required to submit the fiscal registration statement within 30 days as of the
entry into force of this Code.
(2) Fiscal identification codes and fiscal registration certificates
assigned prior to the entry into force of this Code are to remain valid.
(3) Persons registered in the Register of taxpayers upon the entry into
force of this Code whose fiscal domicile differ from their registered location,
in case of legal persons, or domicile in case of individuals, as the case may
be, are obliged to submit the fiscal registration declaration within 90 days as
of the date of entry into force of this Code. Otherwise, the last domiciled or
location as declared is to be considered as the valid fiscal domicile.
Art. 202 Transitional provisions as regards solution of applications for
value-added tax
Applications for the value added tax refund, which were submitted
according to the value-added tax law but were not solved until the entry into
force of this Code, are to be solved in compliance with regulations based on
which they were submitted.
Art. 203 Transitional provisions regarding tax audit
Tax audits commenced before the entry into force of this Code are to
continue according to existing procedures upon the date of initiation thereof.
Under these circumstances, the measures taken through audit minutes are to
worth as a fiscal administrative act.
Art. 204 Transitional provisions regarding solution of appeals
(1) Appeals submitted prior to the date of entry into force of this Code
are to be solved according to the existing administrative-jurisdictional
procedure upon the submission of such appeal.
(2) In case of appeals under solving that are submitted against audit
acts by which the same period and the same type of tax obligation was verified
before and for which from the instrumentation of the criminal cases by
competent bodies no prejudice results, previously determined obligations are to
be maintained.
Art. 205 Transitional provisions regarding forced execution
The forced executions that were already commenced upon the entry into
force of this Code are to continue according to its provisions and acts
previously performed are to remain valid.
Art. 206 Entry into force
This Code is to enter into force as of 1st January 2004.
Provisions of Title X Sanctions are to enter into force as of 10th
January 2004.
Art. 207 Temporary conflict of normative acts
Regulations passed according to emergency ordinances and ordinances
according to Art. 208 are to remain applicable until the approval of normative
acts regarding the implementation of this Code as provided in Art. 196, to the
extent that such regulations do not contradict such Code provisions.
Art. 208 Repeals
Upon
the entry into force of this Code, the following normative acts are to be
repealed:
a) Government Ordinance no. 82/1998 regarding the fiscal registration of
taxpayers, republished in the Official Gazette of Romania, Part I, no. 712 of 1
October 2002, as amended;
b) Government Ordinance no. 68/1997 regarding the procedure to prepare
and submit tax returns, republished in the Official Gazette of Romania, Part I,
no. 121 of 24 March 1999, as amended;
c) Government Ordinance no. 61/2002 as regards the collection of
budgetary receivables, republished in the Official Gazette of Romania, Part I,
no. 582 on 14th August 2003, with further modifications and
completions;
d) Government Ordinance no. 70/1997 regarding the tax audit, published
in the Official Gazette of Romania, Part I, no. 227 of 30th August
1997, approved with amendments and completions by Law no 64/1999, as amended;
e) Government Ordinance no. 13/2001 regarding the solution of appeals
submitted against measures taken by the audit or tax assessment documents
prepared by bodies of the Ministry of Public Finance, published in the Official
Gazette of Romania, Part I, no. 62 of 6th February 2001, approved
with amendments and completions by Law no 506/2001, as amended;
f) Government Ordinance no. 39/2003 regarding the procedures of
administration of receivables to local budgets, published in the Official
Gazette of Romania, Part I, no. 66 of 2nd February 2003, approved
with amendments and completions by Law no 358/2003;
g) point 5 in CHAPTER I, annex I in Law no. 117/1999 as regards
extra-judicial stamp fees, with further modifications and completions,
published in the Official Gazette of Romania, Part I, no. 321 on6th
July 1999;
h) Art. 3 in Law no. 87/1994 as regards the fight against the tax
evasion, republished in the published in the Official Gazette of Romania, Part
I, no. 545 on 29th July 2003;
i) Art. IV par. (1) through (5) in Government Ordinance no. 29/2004 for
the regulation of certain financial measures, published in the Official Gazette
of Romania, Part I, no. 90 on 31st January 2004;
j) Art. 246 in Law no. 571/2003 regarding the Fiscal Code published in
the Official Gazette of Romania, Part I, no. 927 on 23rd December
2003;
k) Art. 61 par. (3) in Law no. 141/1997 regarding the Customs Code of
Romania, with further modifications and completions, published in the Official
Gazette of Romania, Part I, no. 180 on 1st August 1997.