Amendments and additions to the Fiscal Procedure Code: GEO no. 188/2022

The takeaway 

The Government of Romania has adopted Emergency Ordinance no. 188/2022 (GEO no. 188/2022) to amend and supplement the rules for carrying out tax inspections, communications between the National Tax Administration Agency (ANAF) and taxpayers/payers, and in relation to taxpayers’ voluntary compliance. All these measures are adopted in the context of the reform undertaken by ANAF through the National Recovery and Resilience Plan.

In detail

We present the most important changes and additions made to the Fiscal Procedure Code by GEO no. 188/2022:

New definitions

Two new definitions have been introduced:

  1.  The administrative tax inspection file − all the documents and information that form the basis of the findings from a factual and legal perspective, as well as those issued in connection with the administration of evidence; and
  2. The tax file − the set of documents and information received or developed, held by the tax body in connection with the activity of administering a taxpayer’s tax claims.

The tax body is obliged to make available to taxpayers at their written request the documents and information used as the basis for issuing inspection findings and retained in the tax body’s administrative file on the taxpayer.

The procedure for performing the risk analysis

The risk analysis is carried out periodically, and the tax body also establishes the tax risk class/subclass of the taxpayer. The tax risk class/subclass is communicated to the taxpayer, on request, by any means of communication, except when restricting access to this information is justified. Within the general criteria for establishing the degree of risk, economic criteria will also be considered. The deadline for the implementation of the IT application for risk analysis is 31 December 2025, after which the assignment of taxpayers to risk classes/subclasses will be possible, with applicability as of 1 January 2026.

Tax authority requests for documents and information / making those available to them

The tax body has to prioritise the information and documents already available regarding the taxpayer’s activity (e.g. SAF-T, RO-eTransport, Ro-eInvoice and financial statements). The request for additional documents/information will be addressed in writing and only concern such information as is not already held by the tax authority. Those requests must specify the nature of the information required to determine the tax status and the supporting documents.

The tax body can issue such requests for documents electronically or by post with confirmation of receipt to the tax domicile of the person obliged to present them. The requested documents can be made available at the headquarters of the tax body by post with confirmation of receipt, submitting them to the registry of the tax body or by electronic means.

The public authorities and institutions’ obligation to provide information and present documents

The central tax body is obliged to transmit to the local tax bodies information on individuals’ sources of income. The local tax bodies and the central tax body complete the “Protocol of accession to the services of the PatrimVen IT system”, which is transmitted through the Ministry of Finance/ANAF IT system.

The mode of transmission between taxpayers and ANAF bodies of requests/documents/enrollments during the tax inspection procedure or resolution of the appeal 

During the tax inspection or appeal resolution procedure, requests, documents or any other documents can be submitted by taxpayers and the inspection or appeal resolution body electronically, by post with confirmation of receipt or by email to the address indicated by the inspection control or appeal resolution body, or they can be submitted to the registry of the competent tax body.

The manner of carrying out the tax inspection activity, the competence to carry out it out and the criteria according to which it is triggered

The establishment of the tax base of the differences in taxes or fees is carried out according to the legal provisions, depending on the established inspection method. The phrase “the correct establishment of the tax base” has been was replaced by the phrase “the establishment of the tax base”.

The tax inspection is carried out by the local tax body, based on the principles of independence, uniqueness, autonomy, hierarchy, territoriality and decentralisation, and the central tax body exercises the tax inspection based on the principles of independence, uniqueness, hierarchy autonomy and decentralisation.

In the case of receivables administered by the central tax body and in the case of the documentary verification carried out by the tax inspection structures within the central tax body, the tax inspection bodies have the competence to carry out tax inspections throughout the country.

In the case of tax receivables administered by the central tax body, the selection of taxpayers/payers for tax inspections is carried out at the level of the ANAF central apparatus, depending on the level of risk established on the basis of the risk analysis. By way of exception, taxpayers/payers may be randomly selected for tax inspection in a calendar year, and the percentage may not exceed 10% of the total of taxpayers/payers selected for tax inspection in that year. The procedure will be established by order of the ANAF president (enters into force on 1 January 2026).

A Notice of Compliance has been introduced for issuing by the central tax body in the case of tax inspection of taxpayers / presumptive payers selected for tax inspection. The tax inspection body sends them, in writing, the notification of compliance with regard to the tax risks identified for the purpose of their reanalysis of the tax situation and the submission or correction of tax returns.

The taxpayer/payer is informed that within 30 days from the date of communication of the notification that they can submit or correct the tax returns. Until this term expires, the tax inspection body does not take any action in the selection process for tax inspection. Even if the taxpayer/payer submits or corrects the tax returns, they can still be selected for the tax inspection, but only after the deadline. The model of the compliance notification, the frequency of issuing notifications and the notification procedure will be approved by order of the ANAF president.

The tax inspection is usually carried out at the headquarters of the tax inspection body, but at the initiative of the tax inspection body or at the motivated request of the taxpayer/payer, it can be carried out in the latter’s place of business, during or outside working with their written consent and with the approval of the head of the tax inspection body.

If the tax inspection is carried out at the headquarters of the tax inspection body, the start date of the tax inspection is the date provided in the notice. If the tax inspection cannot start on the date provided in the notice, at the latest on the date of its fulfillment, the taxpayer/payer is notified, in writing, of the new start date of the tax inspection.

Unexpected control and anti-fraud inspection

The phrase “current, operative and thematic inspection” has been replaced by “anti-fraud inspection”. Unannounced inspections are provided for separately, as follows:

  • Unannounced inspections are carried out by the tax inspection bodies and the competent tax bodies for carrying out the verification of the personal tax situation.
  • Anti-fraud inspections are carried out by civil servants from the General Anti-Fraud Directorate throughout the country, based on risk analysis. These inspections are aimed at preventing and combating tax fraud and evasion.

Anti-fraud tax inspection bodies carry out operative inspection activities without the prior notification of the taxpayer. Anti-fraud inspections can be exercised without the existence of a risk analysis in the following situations:

  • When violations of tax legislation are found that require immediate intervention.
  • When specific inspection actions are carried out to prevent and combat fraud and/or tax evasion.

During the anti-fraud inspection, the taxpayer has the right to benefit from specialist assistance, to be informed during the inspection of the findings, to have their activity affected as little as possible and to receive written proof when inspectors retain documents.

Verification of the individuals’ personal tax situations

The central tax body performs the following preliminary activities:

  • Risk analysis to establish the risk related to natural persons of non-compliance with the declaration of taxable income. The risk represents the significant difference between the income estimated in the risk analysis and the income declared by the individual and/or by the payers for the same taxable period. “Significant difference” means greater than 10% of the declared income, but not less than RON 50,000.
  • The individual identified to be a tax risk is notified in writing, before their selection for the verification of the personal tax situation, that they have the opportunity to reanalyse the personal tax situation and to submit or correct the tax declarations within 30 days.
  • The selection of individuals to be subject to verification of the personal tax situation depends on the established risk level. The level of risk is determined based on the risk analysis.

Individuals may be randomly selected for verification of their personal tax situation. The procedure will be established by order of the ANAF president. In a calendar year, the percentage of randomly selected individuals cannot exceed 10% of the total number of selected individuals.

The central tax body sends, in writing, individuals identified as having a tax risk a notification of compliance regarding the identified tax risks for their reanalysis of the tax situation and the correction of tax declarations within 30 days from the date of communication of the notification.

Document verification

Documentary verification is carried out within the limitation period of the right to establish tax claims. One or more operations carried out in a certain period within one or more taxable periods may be subject to verification.

If the tax authority finds differences with respect to the tax receivables, income or taxable assets and/or information related to them declared by the taxpayer/payer, it notifies them of the findings. Along with the notification, the tax body requests the documents and written explanations that the taxpayer/payer must present to clarify the tax situation within 30 days from the communication of the notification. The deadline can be extended at the request of the taxpayer/payer, for well-justified reasons.

The imposition decision is issued within no more than 25 working days from the date of the person’s hearing. Any decision issued without a hearing is null and void, unless the taxpayer/payer notifies the tax authority that they waive the right to such a hearing.

After the hearing, the person can present their point of view in writing, within five working days following the hearing date. The deadline can be extended by no more than five working days, for justified reasons, with the agreement of the head of the tax inspection body.

The provisions regarding the non-declaration penalty are also applied accordingly for the main tax obligations established by taxation decision issued as a result of the procedure for verifying the personal tax situation or as a result of the documentary verification procedure. That includes for incomes whose source has not been identified. In those cases, the non-declaration penalty is calculated starting from the first day of the tax year following that to which the tax applies and until the date of repayment of the amount due.

Source: [Government Emergency Ordinance no. 188/2022 for the amendment and completion of the Fiscal Procedure Code and for the amendment of GEO no. 74/2013 regarding some measures to improve and reorganize the activity of the National Agency for Fiscal Administration, as well as to amend and supplement some normative acts, published in the Official Gazette no. 1272 dated 29 December 2022]