ANAF blocks accounts and places seizures immediately after tax decisions from documentary checks

ANAF has changed its approach in the framework of documentary checks, the procedure in which the taxpayer is not even notified that it is being checked.

Practically, the taxpayer learns that he is being verified towards the completion of the procedure that ends with the tax decision. Unlike the first part of the year, in the last 3 months the Tax Office has started to block accounts and seize assets, simultaneously with issuing the tax decision. If the 2nd Fiscal Package passes, the huge fines of hundreds of thousands of lei will also be “protected” by precautionary measures decisions. In addition, the tax authority will be able to attract the joint and several liability of the associates and administrators, without having to prove any bad faith on their part

• The documentary verification is a procedure that results in the issuing of a decision to impose a tax
• In recent months, ANAF has started to issue simultaneously with the imposition decisions and decisions to institute precautionary measures. Practically, from the first second you not only owe ANAF, but also have your accounts blocked
• In the less than 30 days in which injunctions become enforceable, there is not enough time for a lawyer to formulate a viable defense and for a court to grant time and try their case.
• More recently, ANAF protects the fines it issues through precautionary measures. We could say that we are already in tests until the entry into force of the Second Package of fiscal measures, which provides for fines of 100,000 and 300,000 lei.

“The documentary verification is a quick procedure that results in an imposition decision, i.e. not like the Anti-Fraud control with minutes. More recently, simultaneously with the imposition decisions, decisions are also issued to institute some precautionary measures. Practically, not only do you owe ANAF in record time, but you also have your accounts blocked from the first second”said lawyer Luisiana Dobrinescu, Partner, Dobrinescu Dobrev SCA.

The precautionary measures consist of seizure and garnishment intended to preserve taxpayers' assets in the event of an imminent execution.

Decisions on precautionary measures, however, must be issued only in exceptional cases, according to the Fiscal Procedure Code. They are only taken in the situation where there is a danger of the taxpayer evading, hiding or squandering his patrimony.

Practically, a precautionary measure decision should not be issued as soon as you have a tax decision or in the simple event of a tax decision. Issuing precautionary measures decisions should be done exceptionally if the inspector sees that the taxpayer is already starting to dispose of his assets: he sells assets with subsequent collection or borrows large sums of money.

“Unfortunately, among the reasons cited by ANAF when it imposes seizure and confiscation, as minsurers, it is also found that the company does not have in its accounts the amount it should pay. In such a wayl of interpretation, anyone will qualify for the establishment of precautionary measures, because there are few situations in which companies actually have availability in their accounts at the level of the potential amounts that the Tax Office could impose”Luisiana Dobrinescu also stated.

What is the main problem related to the exercise of the right to defence

“The procedural position from which you start to defend yourself is the main problem”.

“In the framework of the documentary verification, neither Neither the IRS nor the taxpayer has time to provide detailed explanations or administer extensive evidence. You owe all of a sudden, days away from when The tax authorities request your first (and last) explanations. I mean, you didn't get to elaborate more than during a tax inspection, to have discussions with the inspectors. At the same time, you also find yourself with blocked accounts and seized assets, without having a minimum respite between the moment of imposition and the moment of forced execution”. also declared the representative of Dobrinescu Dobrev SCA.

The Fiscal Procedure Code says that decisions on precautionary measures become enforceable, i.e. the money initially blocked by precautionary measures reaches ANAF as soon as the payment term expires according to the tax decision.

This has a payment term of less than 30 days, depending on the date of communication. If they communicate before the 15th of the month, you have until the 5th of the following month, and if they communicate between the 15th and 31st, you have until the 20th. So in all combinations, you have less than 30 days.

“It is impossible in the current legal system for someone to file an appeal against the precautionary measures decision and for a judge to judge it during this time. For this reason, even if you tried it in court, while waiting for the deadline you already have the blocked accounts and they become executory. So the money is drawn. Then, according to the law, the appeal remains moot because the execution has already happened”, explains Luisiana Dobrinescu.

In the last two months, preventive measures decisions were issued not only for the amounts determined during the documentary checks, but also for the fines applied. With Package 2 of fiscal measures, if it is adopted in the form made public more than a month ago, we will have a multitude of substantial fines (between 40,000 and 300,000 lei), which will fall under the “protective” umbrella of sequestrations and collateral seizures.

In the opinion of the lawyer, most likely, from the spring we will also talk about the automatic attraction (in the absence of any bad faith) of the joint and several liability of the associate and the administrator.