May 9, 2018
The settlement of tax receivables can be done as follows:1. by payment;2. by compensation;3. by refund.In the situation when the fiscal obligations of the taxpayers are not paid voluntarily and their extinguishment is not operated according to the previously mentioned ones, the fiscal bodies resort to actions of forced execution of their incomes and goods.In case the debtor does not voluntarily pay the due fiscal obligations, the competent fiscal body, for their extinction, proceeds to forced execution actions, unless there is a request for restitution / reimbursement in progress, and the amount requested is equal to or higher than the tax receivable due by the debtor.The fiscal body that administers the fiscal receivables is empowered to carry out the precautionary measures and to carry out the forced execution procedure.Taxes, fees, social contributions and any other revenue of the general consolidated budget may not be tracked by any creditor for any category of claims under enforcement proceedings.The procedure for executing the fiscal receivables is fulfilled by the fiscal executorsEnforcement is done by the competent enforcement body through tax executors. They must have a service card that they must present in the exercise of the activity. The fiscal executor is empowered before the debtor and the third parties through the identification of fiscal executor and delegation issued by the enforcement body.In order to carry out the forced execution, the fiscal executors can:
a) to enter any business premises of the debtor, the legal person, or other premises where he keeps his goods, in order to identify the goods or values that can be enforced, as well as to analyze the debtor’s accounting records in order to identify third parties owes or holds in storage the debtor’s income or assets;
b) to enter all the rooms where the debtor’s goods or values are found, the natural person, as well as to investigate all the places where he keeps his goods;
c) to request and investigate any document or material element that may constitute evidence in determining the property owned by the debtor;
d) to apply seals on the goods, drawing up in this sense the minutes;
e) to ascertain contraventions and to apply sanctions according to the law.
The fiscal executor may enter the rooms representing the domicile or residence of a natural person, with his consent, and in case of refusal, the enforcement body requests the authorization of the competent court according to the provisions of the Code of Civil Procedure, republished. The access of the fiscal executor in the house, in the business premises or in any other room of the debtor, natural or legal person, can be made between 6:00 – 20:00, on any working day. The execution started can continue on the same day or in the following days. In cases duly justified by the danger of alienation of some goods, the access to the debtor’s premises may take place at other hours than those mentioned, as well as on non-working days, based on the authorization of the court. In the absence of the debtor or if he refuses access to any of the rooms, the tax executor may enter them in the presence of a representative of the police or gendarmerie or another agent of the public force and two major witnesses. Rules on enforcement
1. The forced execution may extend on the incomes and goods owned by the debtor, traceable according to the law, and their capitalization is carried out only to the extent necessary for the realization of the fiscal receivables and the execution expenses.
2. The forced execution of the debtor’s property, traceable according to the law, is carried out, as a rule, within the limit of 150% of the value of fiscal receivables, including execution expenses, unless for objective reasons related to the patrimonial situation of to the debtor this level can not be observed.
3. The debatable assets owned by the debtor, presented by him and / or identified by the enforcement body, are subject to seizure and capitalization, in the following order: a) movable and immovable property that is not directly used in the activity that constitutes the main source of income;
b) goods that are not directly predestined for carrying out the activity that constitutes the main source of income;
c) movable and immovable property that is temporarily in the possession of other persons based on lease, loan, rental, concession, leasing and other contracts;
d) set of goods that can be capitalized individually and / or as a whole;
e) machine tools, equipment, raw materials and materials and other movable property, as well as real estate serving the activity that constitutes the main source of income;
f) finished products.
4. Goods subject to a special traffic regime may be pursued only in compliance with the conditions provided by law.
5. The forced execution of fiscal receivables does not expire.
6. The forced execution is carried out until the settlement of the fiscal receivables registered in the executory title, including the accessory fiscal receivables, or of other amounts, due or granted according to the law through it, as well as of the execution expenses.
7. If the executory title provides, as the case may be, ancillary tax receivables or other amounts, without having established their amount, they shall be calculated by the enforcement body and shall be recorded in a report which constitutes enforceable title, which is communicated to the debtor.
Summons and writ of execution The forced execution of the fiscal receivables is carried out on the basis of an executory title issued, according to the provisions of the Fiscal Procedure Code, by the competent forced execution body. The executory title issued by the enforcement body includes the fiscal receivables, principal and accessories, unpaid at maturity, established and individualized in fiscal receivables drawn up and communicated under the law, as well as individualized budget receivables in other documents that constitute enforceable titles. The forced execution of the budgetary receivables resulting from contractual legal relations is carried out based on the court decision or another document which, according to the law, constitutes an executory title. The debt title becomes an enforceable title on the date on which the due date or the payment term provided by law is fulfilled. Enforcement begins by communicating the summons. If the debit is not extinguished within 15 days from the communication of the summons, the enforcement measures shall be continued. The summons is accompanied by a copy of the writ of execution issued by the enforcement body. The summons includes the number of the execution file; the amount for which the forced execution begins; the term in which the summoned person is to pay the amount provided in the executory title, as well as the indication of the consequences of its non-observance.
Legal provisions regarding the modalities of forced execution Forced execution by seizureForced execution of movable propertyForced execution of real estate1. Enforcement by seizure Any traceable amounts representing income and cash in lei and in foreign currency, securities or other intangible movable property, owned and / or owed, by any title, to the debtor by third parties or which they will be subject to foreclosure by seizure owes and / or holds in the future on the basis of existing legal relationships. In the case of traceable amounts representing income and cash, the banks are authorized to convert the amounts into foreign currency in lei, without the consent of the account holder, at the exchange rate displayed by them for that day. Important: The forced execution by seizing the bank accounts is done only by communicating an address for setting up the seizure, which has the quality of a fiscal administrative act. From the moment of unavailability, respectively from the date and time of receiving the address for setting up the attachment on cash, banks do not proceed to the settlement of payment documents received, respectively to debit debtors’ accounts, and do not accept other payments from their accounts until full payment registered in the address of establishment of the seizure, except:
a) the amounts necessary for the payment of salary rights, including taxes and related contributions, withheld at source, if, according to the declaration on the debtor’s or his legal representative’s own responsibility, it results that the debtor does not have other cash;
b) the amounts necessary for the payment of excise duties by the authorized warehousekeepers. In this case, the debtor presents to the credit institution together with the payment order and the certified copy, according to the original, of the warehousekeeper’s authorization;
c) the amounts necessary for the payment of excise duties, on behalf of the authorized warehousekeepers, by the buyers of energy products;
d) the amounts necessary for the payment of the fiscal obligations on which the maintenance of the validity of the facility depends. In this case, the debtor will present to the credit institution together with the payment order and the certified copy, according to the original, of the document by which the payment facility was approved.
During the insurance seizure period, the banks accept payments from the debtors’ accounts ordered for the settlement of the amounts previously provided, as well as for the settlement of the fiscal obligations related to the budgets administered by the fiscal body that established the seizure. Note: Enforcement can be extended to the seized third party (from the accounting records are extracted customers with payment obligations to the taxpayer in the foreclosure procedure). The seizure on the incomes of the debtors natural persons or legal entities is established by the enforcement body, through an address that is communicated to the seized third party. The seizure is considered established from the moment of receiving the establishment address by the seized third party. In this sense, the seized third party is obliged to register both the day and the time of receiving the address for setting up the seizure.
Note: Enforcement can be extended to the seized third party (from the accounting records are extracted customers with payment obligations to the taxpayer in the foreclosure procedure). The seizure on the incomes of the debtors natural persons or legal entities is established by the enforcement body, through an address that is communicated to the seized third party. The seizure is considered established from the moment of receiving the establishment address by the seized third party. In this sense, the seized third party is obliged to register both the day and the time of receiving the address for setting up the seizure. After the establishment of the seizure, the seized third party is obliged: to pay, immediately or after the date on which the claim becomes due, to the fiscal body the amount withheld and due, in the account indicated by the enforcement body;If, at the date of communication of the address of establishment of the attachment, the seized third party does not owe any amount of money to the debtor pursued or will not owe in the future such amounts under existing legal relationships, notifies the enforcement body within this period. 5 days from the receipt of the address for setting up the seizure.
2. Forced execution of movable property Any movable property of the debtor is subject to forced execution, with the exceptions provided by law. The forced execution of movable goods is done by seizing and capitalizing on them, even if they are in a third party. The seizure is established through a report. The fiscal executor, at the beginning of the forced execution, is obliged to verify if the goods are at the place of application of the seizure and if they have not been substituted or degraded, as well as to seize other goods of the debtor, if those found for verification are not sufficient for debt settlement. Through the seizure established on the movable goods, the fiscal creditor acquires a right of pledge which confers to him in relation to other creditors the same rights as the right of pledge in the sense of the provisions of the common law. From the date of drawing up the seizure report, the seized goods are unavailable. As long as the forced execution lasts, the debtor cannot dispose of these goods except with the approval given, according to the law, by the competent body. Failure to comply with this prohibition entails liability, according to the law, of the offender. The acts of disposition that would intervene after the unavailability are struck by absolute nullity.
3. Forced execution of real estate The real estate owned by the debtor is subject to forced execution. Seizure of real estate is a legal mortgage. The mortgage right confers to the fiscal creditor in relation to other creditors the same rights as the mortgage right, in the sense of the provisions of the common law. For seized real estate, the enforcement body that instituted the seizure will immediately request the office of cadastre and real estate advertising to register the legal mortgage in the land book, within the terms and conditions provided by law, attaching a copy of the seizure report Capitalization of seized goods If the fiscal receivable is not extinguished within 15 days from the date of concluding the seizure report, the seized goods will be capitalized, without performing any other formality, except for the situations in which, according to the law, the seizure has been canceled. or suspension of enforcement. In order to carry out the forced execution with the most advantageous results, taking into account both the legitimate and immediate interest of the creditor, as well as the rights and obligations of the pursued debtor, the forced execution body proceeds to capitalize the seized goods in one of the ways provided by and which, compared to the concrete data of the case, prove to be more efficient. The competent enforcement body proceeds to capitalize on the seized goods by: a) understanding of the parties; b) consignment sale of movable goods; c) direct sale; d) sale at auction, including by electronic means; e) other modalities allowed by law, including the capitalization of the goods through auction houses, real estate agencies or brokerage companies, as the case may be.