Persons harmed in a right of theirs affected by a tax administrative act may make CONTESTATION against it. There are three essential elements in view of a challenge:
1. Opposability of the administrative act
The tax administrative act takes effect from the moment it is communicated to the taxpayer or at a later date mentioned in the administrative act communicated according to the law. The administrative act which has not been communicated shall not be enforceable against the taxpayer and shall not have legal effects.
Attention, then! If the tax body does not prove that it has communicated to you the tax administrative act, it has no consequence sin as it does not have legal effects.
2. Nullity of the tax administrative act
The tax administrative act is null in any of the following situations:
– is issued in violation of the legal provisions on jurisdiction;
– does not include one of the elements relating to the name, surname and capacity of the authorized person of the tax body, the name and surname or the name of the taxpayer, the object of the administrative act or the signature of the authorized person of the tax body;
is affected by a serious and obvious error.
3. Cancellation, termination or amendment of the tax administrative act
In case of annulment or dissolution of the tax administrative acts by which tax claims have been established, the procedure entails the issuance of a new tax administrative act.
There are two types of challenge:
1. Dispute of enforcement acts;
2. Dispute of tax rulings, ancillary calculation decisions (interest, late payment penalties, non-declaration penalties) following tax inspections.
Since the Tax Protection Manual has followed and pursues the issue of tax control, we continue to present important issues related only to the challenge of tax rulings, ancillary calculation decisions (interest, late payment penalties, non-declaration penalties) following tax inspections.
Dispute of tax rulings, ancillary calculation decisions (interest, late payment penalties, non-declaration penalties) following tax inspections:
Against the debt title, as well as against other tax administrative acts, an objection may be lodged. This is an administrative remedy and does not remove the right to action of the person who considers himself harmed in his rights by a fiscal administrative act;
Only those who consider that he has been harmed in his rights by a tax administrative act are entitled to challenge;
The tax base and the tax claim established by the tax decision shall be challenged only together.
You need to know what the elements of a challenge are
1. the identification data of the challenger;
2. the object of the challenge;
3. the reasons of fact and law;
4. the evidence on which it is based;
5. the signature of the applicant or his representative.
If the challenge is not well substantiated and proven, it may be rejected by one of the methods listed by OPANAF no. 3741/2015, as follows:
1. unfounded, where the factual and legal arguments presented in support of the challenge are not such as to alter those ordered by the contested tax administrative act;
2. unmotivated, in a situation where the challenger does not present factual and legal arguments in support of the challenge;
3. being without object, in the event that the disputed amounts and measures have not been established by the contested tax administrative act;
4. inadmissible, in the event of a challenge to the tax rulings issued pursuant to the decision on the basis of taxation (conf. Article 268 (2) of the Treaty). (6) of the Code of Tax Procedure) as well as in the case of a stand-alone challenge of the Tax Inspection Report or the Minutes issued by the tax or customs authorities. This solution is pronounced by the tax body issuing the contested act.
You need to know what the solutions are to a constellation
1. By decision, the appeal may be upheld, in whole or in part, or dismissed.
2. In the event of the admission of the challenge, the total or partial annulment of the contested act shall be decided, as the case may be.
3. There is also a special situation, namely the abolition of the fiscal administrative act
The decision may abolish, in whole or in part, the contested administrative act if, from the documents existing on file and following the steps taken at the issuing tax body, it is not possible to establish the factual situation in the case subject to resolution by reference to the legal grounds invoked by the competent body and the challenger. In this case, the competent tax body is to conclude a new fiscal administrative act which must take into account strictly the considerations of the decision to resolve the dispute. For a type of tax claim and for a period subject to taxation, the abolition of the tax administrative act can be pronounced only once.
The dissolution solution is implemented within 60 days from the date of communication of the decision in the case of large and medium-sized taxpayers and within 30 days in the case of other taxpayers, and the new tax administrative act issued covers strictly the same period and the same object of the challenge for which the dissolution solution was pronounced.
There is also another special situation, namely the suspension of the resolution of the case, especially in the situation where there have been indications of criminal acts and which have been the subject of such a referral. The competent resolution body may suspend the resolution of the administrative challenge at the request of the applicant or of its own motion. If the decision suspends the resolution of the appeal until the criminal case is resolved, the competent resolution body will resume the administrative procedure, only after the final and enforceable termination of the reason for the suspension, at the request of the objector or the tax body. It must be proved by the tax authorities or by the challenger by a document issued by the competent bodies. The solution given by the criminal prosecution bodies must be accompanied by the reasoned resolution, when the suspension has been pronounced until the criminal case is resolved.
It is very important to know also the deadlines for filing an appeal in order not to be in a situation of being rejected because of this reason
According to Article 270 of the Code of Tax Procedure, the time limit for lodging an appeal shall be 45 days from the communication of the contested tax administrative act. OPANAF nr. 3741/2015 shall specify how this deadline is to be determined, namely:
The time limit for lodging an appeal shall be calculated on days off, unless otherwise provided by law, not taking into account either the day when it began or the day when the deadline ended.
For example: The Tax Administrative Act is communicated to the taxpayer on June 29, the 45-day deadline begins to run from June 30 and ends on August 13, so the last day of filing the challenge is August 14.
The period ending on a legal holiday or when the service is suspended (e.g. weekly rest days) will be extended until the end of the first next working day.
For example: If the 30th of July presented in the previous example is Saturday, the last day of submission of the challenge is Monday, 1 August.
The three-month period referred to in Article 270 (1) shall be set at one month. (4) of the Code of Tax Procedure ends on the day of the month corresponding to the day of departure.
For example: The tax administrative act is communicated to the taxpayer on January 15, the 3-month period ends on April 15, so the last day of filing the challenge is April 15.
The term which, beginning on the 29th, 30th or 31st of the month, ends in a month that does not have such a day will be counted as fulfilled on the last day of the month, such as the example set out below:
The fiscal administrative act is communicated on 30 November, the 3-month period ends on the last day of February, 28 or 29 February, representing the last day of filing the challenge.
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