Emergency ordinance no. 188 for the amendment and completion of Law no. 207/2015 regarding the Fiscal Procedure Code and for the amendment of the Government Emergency Ordinance 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

By publishing in the Official Gazette the Emergency Ordinance no. 188/ 2022 several changes were made regarding the fiscal procedure. Among the main changes are the following:

• The administrative file of the tax control. The obligation of the tax body to make available to the taxpayer subject to a tax inspection the administrative file of the tax control, at the written request of the taxpayer, was regulated. Moreover, the notion of the administrative file of the tax control was also defined – all the documents and information that form the basis of the findings of the tax body from a factual and legal point of view, respectively those issued in connection with the administration of evidence;
• Changes are made regarding the procedure for performing the risk analysis. Thus, the risk analysis is carried out periodically, in which case the tax body also establishes the tax risk class/subclass of the taxpayer. The tax risk class/subclass is communicated to the taxpayer, at his request, through any means of communication that provides proof of receipt of the information, unless objectives of general interest justify restricting access to this information. The provision will enter into force on 1 January 2026.
• The inspection certificate and the service order can also be presented by using remote video communication means
• Tax audits and appeals: the possibility for taxpayers to submit documents/requests by means other than the Virtual Private Space ("SPV"). In the tax control or appeal settlement procedure, any requests or documents can be sent by the taxpayers/payers by electronic means of remote transmission, as the case may be, or by post, with confirmation of receipt or by e-mail to the e-mail address indicated by the control or dispute resolution body or submitted to the competent tax body’s registry. The control/dispute resolution body can also use the same means to send requests/documents to taxpayers;
• If documents or information are needed to clarify the tax situation, the tax body will be able to request from the taxpayer only those documents that it did not previously possess. In this way, duplication of requests from several tax bodies or even from the same institution to provide the same information or documentation that is already in the possession of the tax authorities will be avoided.
• -New rules regarding the tax inspection:
  • Selection of taxpayers. In the case of tax debts administered by the central tax body, the selection of taxpayers that will be investigated through a tax inspection action will be performed at the level of the central apparatus, based on the risk analysis, and the tax inspection bodies will have the competence to carry out the tax inspection throughout the country. As an exception to the rule of selecting taxpayers for inspection according to the level of risk established on the basis of the risk analysis, the possibility of randomly selecting taxpayers for a tax inspection action is introduced. The regulation strictly targets tax debts administered by the central tax authority and limits the maximum percentage of randomly selected taxpayers, in a calendar year, to 10% of the total number of those selected for tax inspection in that year. Exceeding this percentage is a disciplinary offense. The above provisions enter into force on 1 January 2026;
  • The compliance notice issued by the central tax body. For the presumptive taxpayers to be selected for the tax inspection, the tax inspection body sends them, in writing, a compliance notice regarding the tax risks identified in order for them to reanalyze the tax situation and, as the case may be, to submit or to correct tax returns. The notification informs the taxpayer that, within 30 days from the date of notification, he has the opportunity to submit or correct tax returns. Within this term, the tax body will not take any action in order to be selected for the tax inspection. After the aforementioned deadline, taxpayers/payers with high tax risk who have not remedied the tax risks for which they were notified are subject to a mandatory tax inspection or documentary verification.
  • The inspection notice will also contain the possibility of submitting or correcting the tax declaration related to the periods and the tax debts that will be the subject of the tax inspection, until the date of the start of the tax inspection
    
  • The place of the inspection: the inspection will be carried out, as a rule, at the headquarters of the tax inspection body and only by exception at the taxpayer's headquarters;
  • The start date of the tax inspection is the date mentioned in the single control register. 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;
  • Provisional tax assessment decision. If the taxpayer/payer has not been informed about the completion of the verification of a tax period and of a type of tax obligation, he can request the issuance of a provisional tax assessment decision after the completion of half of the legal period that was regulated for performing the tax inspection (not applicable to tax inspections in progress at the date of entry into force of this GEO).
• New rules regarding the documentary verification. In addition to the tax inspection bodies, the tax anti-fraud control bodies and the tax bodies competent to perform the verification of the personal tax situation are also competent (throughout the country). The following rules were also introduced:
  • The documentary verification is performed within the limitation period for the right to establish tax claims, namely 5 years;
  • The competent tax body, based on the tax risk identified, determines the periods that are subject to documentary verification. The documentary verification can regard certain individualized periods within one or more taxable periods;
  • The operations and documents that are subject to documentary verification are selected by the tax body competent to perform the control. One or more operations performed in a given period may be subject to documentary verification, as the case may be;
  • During the documentary verification performed by the tax bodies that are competent to perform the verification of the personal tax situation, indirect methods of income determination are used;
  • As part of the documentary verification, communications between the control body and the taxpayer/payer can also be done electronically.

Regarding the result of the documentary verification, the taxpayers/payers that were subjected to the porcedure will be able to provide documents as well as written explanations. The tax decision can be issued if the taxpayer/payer does not present, complete or correct the requested documents within a maximum of 30 days, deadline that can possibly be extended.

• New rules regarding the anti-fraud control. The object of the anti-fraud control was defined, and it was stated that it is being performed on the basis of the risk analysis. By exception, it can be performed without the existence of a risk analysis (and the taxpayer cannot object to this decision) when:

1. it finds violations of tax legislation that require immediate intervention;
2. exceptionally, in order to perform specific control actions, in order to prevent and combat fraud and/or tax evasion.

• During the anti-fraud control, the taxpayer/payer has the following rights:

1. to request the legitimization of the tax anti-fraud control bodies that perform the anti-fraud control;
2. to benefit from specialized assistance;
3. to be informed during the anti-fraud control on the findings made;
4. to receive written proof in the case of retention of documents as a result of the anti-fraud control activity.

- New rules for the verification of the personal tax situation. The aspects specified above, regarding the compliance notice prior to the tax inspection, will also be applicable in the case of the verification of the personal tax situation, to encourage voluntary compliance. Also, similarly to the tax inspection, the performance of the risk analysis for the identification of individuals who present a tax risk of non-compliance will be performed by the competent structure at the central level. Last but not least, the possibility of randomly selecting natural persons to be subjected to a verification of the personal tax situation is regulated.

For more details regarding the above, please consult the Official Gazette no. 1272 of 29 December 2022.

The EY team is available for further details on the above.