June 6, 2018
According to the Fiscal Procedure Code, the fiscal inspection aims to verify the legality and conformity of fiscal declarations, the correctness and accuracy of taxpayers’ obligations, compliance with tax and accounting legislation, verification or establishment, as appropriate, of tax bases, establishing differences in tax obligations. payment and related accessories. In a broad sense, the notion of anti-fraud control is incorporated in the general fiscal control, together with the fiscal inspection, as it is defined in art. 136 and 137 of Law no. 207/2015.
Strictly speaking, the notion of fiscal control is equivalent to that of fiscal inspection and does not include the notion of anti-fraud control. On the other hand, regarding the anti-fraud control, the Fiscal Procedure Code does not even try a clear definition, showing only that it is operative and unexpected and can be performed in order to perform thematic control operations, which is the verification activity by which aims to ascertain, analyze and evaluate a fiscal risk specific to one or more determined economic activities.
The main mission of anti-fraud control: prevention, detection and combating acts and facts of tax and customs evasion. According to GD no. 520/2013 regarding the organization and functioning of ANAF, the current control is executed operatively and unexpectedly, based on the control card, the badge and the permanent service order. These verifications can be made in all the spaces where goods and services are produced, stored or traded or commercial activities are carried out, in order to prevent, discover and combat any acts and deeds that are prohibited by the Romanian or the community law. Also, the thematic control is performed based on the control card and the badge, but there is also a need for a thematic control order which establishes the objectives to be verified, the entities subject to control, the period over which the verification is performed, duration and time. triggering.
In order to prevent the acts and facts of tax evasion and fraud, the anti-fraud inspectors carry out the operative and unexpected control, regarding the following aspects included in GEO no. 74/2013 regarding some measures for the improvement and reorganization of ANAF’s activity: compliance with normative acts in order to prevent, discover and combat any acts and acts of tax evasion and tax and customs fraud;compliance with trade norms, aiming at preventing, detecting and eliminating tax evasion and tax and customs fraud;the manner of production, storage, circulation and capitalization of goods, in all places and spaces where the activity of economic operators takes place;participation, in collaboration with the specialized bodies of other ministries and specialized institutions, in actions to detect and combat illicit activities that generate phenomena of evasion and fiscal and customs fraud.
Specific attributions of anti-fraud inspectors during the control to verify the observance of the legal regulations regarding the circulation of goods on public roads, railways and rivers, in ports, stations, bus stations, airports, inside free zones, in the vicinity of customs units, warehouses, as well as in other places where economic activities take place;to verify the legality of the activities carried out, the existence and authenticity of the supporting documents in the activities of production and provision of services or during the transport, storage and sale of goods and to apply seals to ensure the integrity of goods;to confiscate the goods whose manufacture, storage, transport or sale is illegal, as well as the incomes realized from commercial activities or illegal services and to pick up the financial-accounting and other documents that can serve to prove the contraventions or crimes;to order the taking of precautionary measures whenever there is a danger that the debtor will evade the pursuit or hide, alienate or waste his patrimony, and if in carrying out the specific activity he finds circumstances regarding the commission of deeds provided by the criminal law in the field tax evasion, to notify the criminal investigation bodies;Careful!
Taking precautionary measures must be related to a certain bad faith attitude of the debtor who tries to steal or hide the patrimonial assets in order to frustrate the efforts of the fiscal body to execute the fiscal claim. Although, according to the provisions of the Fiscal Procedure Code, this measure may be ordered in exceptional cases, it has become a practice of anti-fraud inspectors to apply it, by instituting insurance seizure on company accounts and / or insurance seizure on movable and immovable property. That is why it is necessary to immediately attack in court these abusively applied measures, without taking into account the taxpayer’s fiscal behavior. Also, according to the new Fiscal Procedure Code, a delimitation of the effects of precautionary measures is established, which is established before the debt title.
In this sense, if a final debt title is not issued, so a tax decision is not issued based on a fiscal inspection report within 6 months, the precautionary measures are abolished by law. to legitimize and establish the identity of the administrators of the controlled entities, as well as of any persons involved in committing the facts of fraud and tax and customs evasion found and to request written explanations from them;to retain documents, to request certified copies of the original documents, to take samples, samples, samples and other such specimens and to request the performance of the technical expertise necessary to complete the control act;to ascertain the contraventions and to apply the corresponding sanctions.
Very important! Obligations and non-obligations of anti-fraud inspectors In the case of unannounced controls, the General Anti-Fraud Directorate will not send inspection notices nor will it communicate the objectives of the control or the controlled period. At any control operation, the anti-fraud inspectors are obliged: to present the control card, the badge and the service order (permanent or thematic) and to register in the unique Control Register.
The rules for carrying out anti-fraud control are different from those of a regular tax inspection, being almost non-existent here, which creates the dangerous premises of abuse. There is no charter of taxpayers’ rights and obligations to be sent to them at the beginning of controls (as happens in other EU countries) nor does it explicitly specify the incidence of taxpayer’s rights recognized in the tax inspection procedure (minimum damage, right to be informed, the right to be the first to be asked to provide information, the right to refuse to provide evidence, etc.) There is no real possibility of having a discussion about the findings of anti-fraud inspectors before they draw their own conclusion that may be wrong, inaccurate, incomplete and harmful to the taxpayer.
If you need support and advice on tax or accounting procedures, our team of specialists is open to your disposal. You can find our contact here. * This article is part of the Tax Protection Manual, which is a collection of useful information & practical tips for healthy business offered by NexiaCRG consultants and published on avocatnet.ro