We are delighted to see that a post-Ispas tax jurisprudence is beginning to develop with regard to the right of defence, following the application of the Court rulings dedicated to the right to access the administrative file of the tax inspection. Civil judgment no. 385/6th of December 2017 of the Cluj Court of Appeal –Section III Administrative and Tax Litigation annulled a decision of answering a contestation that suspended the decision regarding a criminal case and ordered the General Directorate of Public Finance Cluj-Napoca to answer the contestation of the applicant in compliance with the claimant’s right of defence, the tax authority being held to making all the relevant documents that the decision of imposing and the report of the tax inspection were based on available for the applicant; in addition, the fiscal authority is held to give the claimant a term to build defence regarding these documents and to analyse these defence arguments (if they are to be made) in its decision of answering the contestation.
The court’s solution is an entirely new one and is in respect to the obligations which fall within the responsibility of the tax authority following the judgment of the Court of Justice of the European Union in the legal affair C-298/16, Ispas. Practically speaking, the fiscal authority must prove that it allowed the access to the administrative file of the tax inspection during the administrative procedure so that the taxpayer’s right of defence was effective.
It is to be discussed, in time, if in some cases, a better solution would actually be the full annulment of the administrative acts elaborated by defying the right of defence, especially when the answering of the tax contestation cannot be resumed (whether because it wasn’t suspended or because the 6-month term for answering the contestation has expired).
The applicant company is legally represented by our named partner Mr. Cosmin Flavius Costaș, PhD in collaboration with Mr. Septimiu Ioan Puț, PhD.
