According to ANAF Order No. 3838/2015, in the control activity, anti-fraud inspectors use the following types of documents:
the minutes – are prepared on the occasion of the current, operative and unannounced control or thematic control, for the finding of factual and documentary situations existing at a given time, for the determination of the fiscal state of affairs, as well as for the finding of circumstances concerning the commission of criminal acts;
the minutes of removal/restitution of entries – are completed by the anti-fraud inspectors on the occasion of the collection/restitution of documents and/or entries, according to the law.
sealing/unsealing report – is drawn up by anti-fraud inspectors when there are indications that in the places of production, storage, marketing or during transport there are goods or products whose provenance is not legal or whose manufacture is prohibited by law or occurs without authorization, and the control action cannot be completed, following which it will be continued; there is a possibility that the documents, entries, goods necessary for carrying out the control may be stolen, destroyed or an inventory of them may not be made with a view to their collection/retention; in the activities of monitoring the transport of goods; in other cases where sealing is required, under the law;
invitation – by this act the taxpayer is invited and requested clarifications/inscriptions by the anti-fraud inspectors, at their premises, in situations where it is necessary to carry out/continue the control or the control could not be carried out at the registered office, tax domicile or a secondary seat of the taxpayer nor in a place agreed with the taxpayer. With the request of the taxpayer’s presence at the headquarters of the General/Regional Directorate of Tax Fraud, registers, business documents and any other entries are requested through the “Invitation” form.
Explanatory note – this document requires written explanations from the taxpayer’s representative, any employee of the taxpayer or any person involved in the facts found, which contribute to the establishment of relevant elements of the taxpayer’s activity, which may influence the findings or to clarify cases and/or circumstances.
General rules relating to the preparation of the minutes.
The minutes are the act of bilateral control which is drawn up by the anti-fraud inspectors during the current, operational and unannounced control or thematic control.
If during the inspection circumstances were found regarding the completion of acts stipulated by the criminal law in the financial‐fiscal and customs field, in the minutes, all information, data, documents and records relevant to establishing the circumstances in which the facts were committed, as well as the written explanations of the administrators and/or any persons involved. In the event that the administrators and/or persons concerned refuse to provide written explanations, this will be mentioned in the minutes.
In the minutes, which establish the tax implications of the facts showing the indications of the commission of crimes of tax evasion or tax and customs fraud, will describe the methods of establishing the additional tax base, the method of calculation by which the damage was assessed, detailed on each tax, tax, contribution or other amounts due to the consolidated general budget.
The findings will be supported by entries, in certified copy or in original, as the case may be, as well as by other material means of proof.
If the control action has been carried out simultaneously or successively in several locations where the same taxpayer carries out his activity, minutes will usually be drawn up for each case in which the facts found will be described. The findings contained in the minutes concluded under the above mentioned conditions can be used by a report which will include a description of the facts as a whole, the links between them and their possible tax implications. The minutes in which facts are described subsequently, by another minutes, form an integral part of the latter.
The findings of anti-fraud inspectors resulting from a current or thematic control action will be used according to the nature of the findings and the objective of the control.
The minutes shall be communicated to the taxpayer in accordance with the provisions of the Code of Tax Procedure.
With regard to the findings in the Minutes, the legislation states that they must be presented clearly, concisely and legibly, so as to give results in the factual reasons and the legal basis which were the basis of each basis.
In the minutes showing the indications of the commission of offences of tax fraud, the methods of establishing the additional tax base, the method of calculation by which the damage was assessed, detailed on each tax, tax, contribution or other amounts due to the consolidated general budget, must be described. These are the basis for the preparation of the “Decision establishing the insurance measures”, a document of an administrative-fiscal act which has important effects and consequences on the taxpayer, by making the cash accounts unavailable and the insurance seizure on movable and immovable property. It should be noted that this decision can be appealed in court, and the strong point of the action is the attack on the methods of establishing the basis of taxation and the method of calculation in case of non-compliance with the legal conditions.
It is necessary to include the point of view requested from the taxpayer, which may influence the findings or clarify certain causes or circumstances.
Unfortunately, the law does not oblige the submission of the draft minutes for the purpose of the point of view, which is requested to be completed on the spot. However, it is obvious why it is recommended that the person being checked out should be assisted by a specialist.
Unlike tax inspection, anti-fraud inspectors are not obliged to comment on the taxpayer’s point of view.
However, a detailed, well-founded and complete formulation of the point of view of the controlled taxpayer is very important, provided that the final form of the minutes (along with the annexes thereto) will be transmitted to the tax inspection bodies and other state institutions.
You should also know how you will proceed in the event of an explanatory note taken by tax fraud inspectors
Written explanations are not given on the spot. There is a tendency for tax fraud inspectors to request that these explanations be given on the spot, but it takes a time agreed by the parties to formulate on the part of the taxpayer correct written explanations and such as not to affect or even prejudice the conduct and results of the control.
So, in order to avoid that some “data in a hurry” information can be used by tax fraud inspectors, surely, in the reasons for some findings, ask for a reasonable time to formulate it.