Article în WHICH LAWYER magazine 2015
Luisiana Dobrinescu, Managing Partner of SCA DOBRINESCU DOBREV
By chance, 14 years ago, I started to practice fiscal law. There were no more than three or four fiscal lawyers at that time in Bucharest and as much as I feared this unfamiliar and arcane domain for lack of proper training in the Law School, I embraced it from the very beginning and gradually found my way.
In Romania, there are hundreds of changes of the Fiscal Code each year as opposed to a change every hundred years in the Civil Code. There are lots of numbers and plenty of calculations to be made in fiscal consultancy and not much a room for disclaimers on the lawyers side. For all these reasons, few Law School graduates are willing to give up four years worth of studying the civil and criminal law to start pretty much anew every year or so on fiscal law.
The same feeling pervades the courts of justice. Most of the judges are overwhelmed by the difficulty of the fiscal cases allocated to them and the amounts of money claimed, due and contested on fiscal grounds are so high and scary, that they absolutely and resolutely hate the fiscal disputes. There are no training courses, not even crash courses dispensed to the judges by the National Institute of the Magistracy in this field and the access of the judges to specialized information is almost non-existent!
It comes as no wonder that in Romania a fiscal case is judged in 4 years and similar cases receive contradicting solutions, often within the same court of justice. This unpredictability tremendously affects the quality of justice in Romania. Also, the lack of proper legality control from the judiciary bodies, negatively affects the quality of work and the level of responsibility of the tax authorities. When challenged by lawyers, lots of tax assessments, fiscal decisions and enforceable injunctions issued by the fiscal inspectors, although poorly motivated and scarcely defended when in court, are largely maintained by intimidated courts of justice. The tax payers are prone to lose their cases, mainly because there are no courts specialized in fiscal law. The fiscal legislation continuously evolves by getting more verbose and more complicated, new control structures are invented and set in place (e.g. Antifraud Direction), while few changes, if any, are made within the judiciary.
The enforceable titles and seizure measures, issued by the thousands in the past year, come under the material jurisdiction of the court of first degree. According with the Civil Procedural Code, these courts are meant to rule on the more simple trivial cases while the fiscal matters are to be heard in the administrative sections of the Tribunals, Court of Appeal, and the High Court. As we speak, the General Antifraud Directions are issuing thousands of decisions, each imposing seizures over tens of millions of LEI, which are to be challenged before the civil courts of first degree. The judges are literally freezing when the fiscal injunctions (which are not fiscal decisions) evoke, under the guise of estimates, frauds in the 10s of millions of LEI. How is a first degree court supposed to handle, the entire weight of such big cases?
Another systemic problem is the incapacity of the taxpayer to constrain the fiscal authority to do what it is obliged to do. The most common example is of the administrative challenges which are not solved by the fiscal authority in due time. Although the Fiscal Procedure Code provides for a term of 45 days to issue a final fiscal decision under the administrative procedure, there are thousands of cases when the tax payer is bound to wait for 6 months to 2 years before receiving a solution which may be challenged in court, while he is subjected to enforced execution all along.
Law 554/2004 corroborated with art. 210 of the Fiscal Procedure Code is construed by the High Court of Justice as only entitling the tax payer to ask the Administrative Section of the Tribunal or of the Court of Appeal to order the fiscal administration to solve the petition, but by no means to challenge the fiscal title before the final fiscal decision is made. Such trials, which are utterly imperfect remedies to the pressing need of the taxpayer who wants to substantially challenge in court and reverse a fiscal decision, can easily last one year. But, to add insult to injury, even final court sentences rendered against fiscal authorities ,ordering them to issue such final fiscal decisions, go largely ignored.
It is clear that the Romanian tax payer and even non-residents, who need for instance to have their charged VAT in relation to Romanian purchases duly refunded, are craving for an efficient, high-profile fiscal judiciary to impart true judgments, both in the letter as in the spirit of the law.
Let us not forget that large areas of the fiscal domain, such as VAT, are regulated by EU directives as construed by ECJ and Romania needs not only to align, but also to comply to the EU standards and expectations on the rule of law.