NICULEASA LAW FIRM obtains for GENERAL LEASING the annulment of the precautionary measures amounting to approximately RON 42.000.000 ordered by the Fiscal Antifraud Regional Directorate, by a decision which also establishes the nature of the litigation relating to the precautionary measures ordered under the Old Fiscal Procedure Code.
The Bucharest Court, by means of a final judgement, annulled the precautionary measures ordered by the Fiscal Antifraud Directorate for an estimated loss of approximately RON 42.000.000.
The teachings of the courts on the subject of fiscal precautionary measures concern both the requirements for motivating these decisions and the nature of the dispute.
Regarding the latter aspect, the Bucharest Court and the Bucharest Court of Appeal established that the litigation concerning the annulment of the precautionary measures ordered by the Fiscal Antifraud in tax matters, under the Old Fiscal Procedure Code is a civil litigation, falling in the jurisdiction of civil courts since it is not an administrative dispute (as set out, for example, by the New Civil Procedure Code).
As regards the requirements for the motivation of the decision to establish the precautionary measures, the court dismisses the point of view of the tax authorities according to which the statements in the Minutes drawn up by the Antifraud Directorate are sufficient to justify both the factual and legal establishment of the precautionary measures. The court, consistent with the reasons underlying the precautionary measures in the entire Romanian legal system, whether we are talking about civil, criminal or tax law, has established that such measures are based on the assessment of the risk associated to a tax payer, a risk that must be motivated and justified in a concrete and effective way by the authority who orders the establishment of the precautionary measure.
Moreover, the court also dismissed the arguments of the tax authorities according to which the damage estimated in the Minutes, which is not an administrative act, establishes the obligation for the fiscal bodies to order precautionary measures without verifying in any way the idea of risk mentioned previously, establishing the burden of proof on the latter aspect, to the tax authorities and not to the taxpayer.
the Bucharest Court confirms the interpretation that the risk cannot be deduced or explained by the tax authorities by simply estimating the damage (or the circumstances that lead the tax authorities to estimate additional tax liabilities) or by grounds related to the very substance of the tax legal relations analyzed in the Minutes.
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