If a list were to be made of the institutions in the criminal procedure that benefit from least attention from courts, lawyers, prosecutors’ offices and doctrine, the civil action would certainly occupy a leading place. Indeed, including in the specialized doctrine, the civil action is usually treated marginally, without an analysis of substance and especially without the analysis of the specificity of the civil action in the case of tax evasion crimes. In judicial practice, civil party formations are mimetic (e.g. the tax authorities constitute a civil party with the amount indicated by the Prosecutor’s Office, even if they inspected the respective fiscal period without establishing fiscal obligations), no judge makes any real analysis regarding compliance with the formal and substantive conditions for the exercise of the civil action and the establishment of a civil party in the criminal process, and at the end of the process the civil action is admitted rather “because the Constitutional Court obliged us to resolve it”, without any analysis of the conditions for engaging in tortious civil liability (or, as we shall see, fiscal liability), subsequent to criminal liability.
Things would probably have remained this way, because in Romania civilians believe that they have more important problems to resolve than the fate of trivial civil actions in the criminal process, while criminalists believe that the legislator has impermissibly burdened them with the obligation to solve a bland matter of civil law.
But, recently, the High Court of Cassation and Justice – the Panel for resolving legal issues in criminal matters has energized the debate, with the pronouncement of a solution that put an end to a shameful discussion in which fundamental principles of law were ignored, towards to the satisfaction of some and to the displeasure of others. Concretely, by Decision no. 67 of 25th October 2022, the High Court of Cassation and Justice decided: “The norms related to the interruption of the prescription are norms of material criminal law (substantial) subject from the perspective of their application in time to the principle of the activity of the criminal law provided by art. 3 of the Criminal Code, with the exception of more favorable provisions, according to the mitior lex principle provided by art. 15 para. (2) from the Constitution of Romania, republished, and art. 5 of the Criminal Code”.
The solution is certainly applicable and useful in a significant number of criminal cases having as object (and) tax evasion offenses provided for by Law no. 241/2005, in various procedural stages (criminal complaint not followed by the development of the criminal procedure, ongoing criminal investigation, pending criminal case before the court of first instance, criminal case under appeal).
In other words, it was clarified for those who still needed it, this time with binding legal force, how to calculate the limitation periods in criminal matters.
In this context, for the present approach we proposed to answer the following question: How is the civil action resolved in the criminal process, in the cases of tax evasion, when it was found that the criminal action is time-barred?
Our discussion does not primarily concern the issue of the prescription of the right to action in criminal matters, but the associated aspects related to the settlement of the “civil action” (basically, a tax action), the provisions for the recovery of the damage and, correlatively, the means of action of those who have preventively recorded sums of money at the level of the estimated damage – for the possible application of a more favorable criminal provision – to recover the amounts recorded in the damage accounts.
A slightly more concrete premise and a detailed question
For the purposes of our analysis, we will assume that we have a criminal case not finally resolved, with accusations of committing a crime of tax evasion punishable by Law no. 241/2005, in the period 2009 – 2012. The limitation period is fulfilled, by hypothesis, at the end of 2022, the termination of the criminal process being a certainty (of course, in the hypothesis in which the continuation of the criminal process is not requested and it is not ordered, as a matter of priority, a payment solution).
We will also take as a benchmark, in the case, the fact that no fiscal obligations were established directly by any fiscal body, but only a damage was estimated by the Public Prosecutor’s Office and by referring to the conclusions of an accounting expertise administered during the criminal investigation phase.
Fiscally, for the same fiscal period 2009 – 2012, the fiscal body inspected the same taxes and did not conclude that there were deficiencies in terms of compliance with fiscal legislation, i.e. it had no suspicions of a criminal nature and did not consider that any of the operations to the taxpayer could be unreal or fictitious.
Finally, also as an element of the working hypothesis, the accused person recorded, in a so-called damage account in the Treasury and at the disposal of the prosecution unit that implemented the criminal investigation, the estimated value of the damage from the Prosecutor’s indictment.
In relation to the state of facts – premise, we can detail the content of a question to be answered by our analysis as follows: If the fiscal action can no longer be exercised because it is prescribed according to the rules of the fiscal procedure, and the criminal action can no longer be exercised because it is prescribed according to the rules of the criminal procedure, what happens with the so-called “civil action” from the criminal process of tax evasion, with the damage estimated by the indictment and with the amount of money recorded preventively in the damage account?
Civil action or tax action?
Given that it is of principle that in the matter of tax evasion the premise of the discussion is that X or Y evaded the payment of existing and determined tax obligations, it is necessary to clarify which are the relevant provisions in terms of taxation.
Thus, considering that the fiscal period for which, in the hypothetical case chosen, it was assessed that there would have been fiscal obligations from the payment of which the accused person evaded, is 2009 – 2012, we will present comparatively the provisions of the two Fiscal Procedure Codes that were applied successively, respectively:
The Old Fiscal Procedure Code (OG no. 92/2003, in force until December 31, 2015)
Art. 91 OFPC:
(1) The right of the fiscal body to establish fiscal obligations is prescribed within 5 years, unless law provides otherwise.
(2) The limitation period for the right provided for in para. (1) begins to run from 1st of January of the year following the year in which the tax claim arose according to art. 23, unless law provides otherwise.
(3) The right to establish fiscal obligations is prescribed within 10 years if they result from the commission of an act provided for by the criminal law.
(4) The term provided for in para. (3) runs from the date of the commission of the act that constitutes a crime sanctioned as such by a final court decision.
Art. 93 OFPC:
If the fiscal body finds that the limitation period for the right to establish the fiscal obligation has been reached, it will proceed to terminate the procedure for issuing the title of fiscal debt.
The New Fiscal Procedure Code (Law no. 207/2015, in force since 1st of January, 2016)
Art. 110 NFPC:
(1) The right of the tax body to establish tax claims is prescribed within 5 years, unless law provides otherwise.
(2) The limitation period for the right provided for in para. (1) begins to run from July 1 of the year following the year for which the fiscal obligation is due, unless law provides otherwise.
(3) The right to establish tax claims is prescribed within 10 years if they result from the commission of an act provided for by the criminal law.
(4) The term provided for in para. (3) runs from the date of the commission of the act that constitutes a crime sanctioned as such by a final court decision.
Art. 112 NFPC:
If the tax body finds that the limitation period for the right to establish the tax debt has been reached, it will proceed to terminate the procedure for issuing the tax debt title.
In fact, if we analyze the provisions of the two Fiscal Procedure Codes (2004, 2016), we will find that they basically regulate the same solution:
– For criminal acts committed between 2009 and 2012, the statute of limitations begins to run from the date of the act. For example, if by hypothesis the deed was committed on December 8, 2012, a 10-year statute of limitations would expire on December 8, 2022.
– If the fiscal body has not established fiscal obligations neither within the usual limitation period of 5 years nor within the special limitation period for crimes of 10 years, the solution is clear: the fiscal body can no longer initiate or continue the establishment of any fiscal obligation, having the obligation legal to proceed with the termination of the procedure for issuing the title of debt.
– Therefore, for any lawyer with an average training, even without tax knowledge, it becomes obvious that the non-existence of tax obligations means that no tax action can be initiated, that is, no taxpayer can be claimed to pay tax obligations that do not were never established.
In this context, we face the natural problem of clarifying what the famous “civil action” is. Thus, in the sense of art. 19 para. (1) Code of criminal procedure, “The civil action carried out in the framework of the criminal process has as its object the holding to tortious civil liability of the persons responsible according to the civil law for the damage caused by committing the act that is the object of the criminal action”. In relation to this definition, we can point out several aspects:
– According to art. 2 of the Old Fiscal Procedure Code, the “common law” for fiscal matters is the Fiscal Procedure Code, which, where it does not have it, can be supplemented with the Civil Procedure Code, not at all with the Criminal Procedure Code [art. 2 para. (3) from the Old Fiscal Procedure Code].
– With certainty, the provisions of art. 19 para. (1) The Criminal Procedure Code is applicable to matters other than fiscal matters (e.g. civil actions in the case of crimes of theft, robbery, fraud, embezzlement, etc.).
– In fiscal matters, the responsible persons are called taxpayers (that is, natural or legal persons or entities without legal personality that, in a fiscal law relationship, have fiscal obligations to pay certain taxes, fees or contributions), and the damage can only consist in fiscal obligations legally established and not extinguished by any of the methods provided by law.
We can also state that, in our opinion, the entire regulation of civil action in the Code of Criminal Procedure is inappropriate for fiscal matters. This conclusion is justified by the fact that the special rules of the Fiscal Procedure Code are extremely strict and must be taken into account: only the fiscal bodies are competent to determine fiscal obligations, in the charge of some taxpayers (natural persons, legal persons or entities without legal personality) ; fiscal obligations are established by fiscal administrative documents; fiscal administrative acts issued on behalf of some taxpayers, for their presumably unfulfilled fiscal obligations, are subject to a control procedure, in a first administrative phase, and then in a second judicial phase, respecting the rights of taxpayers; taxpayers owe only the sums determined definitively for their responsibility and, consequently, only those sums can constitute “damage” in the sense of Law no. 241/2005; finally, it should be noted that, respecting the principle of availability, according to art. 20 para. (5) lit. b) Criminal Procedure Code, the civil party can, in general, reduce or increase the extent of its claims – text inapplicable in the case of fiscal obligations, the existence of which precedes the commission of the crime and in respect of which the accessories are predetermined by law.
Our conclusion is also supported by several texts of the Criminal Procedure Code. Thus, in the sense of art. 20 para. (5) lit. c) Criminal Procedure Code, the rule is the reparation of the damage (of a civil nature) in kind, but in fiscal matters we cannot talk about such a damage and about such a way of repairing it. Furthermore, according to art. 22 Criminal Procedure Code, the civil party can waive civil claims, an impossible situation in financial-fiscal matters (where there is a legal obligation to recover the damage, subordinated to the state’s obligation to realize all the revenues highlighted in the budget for the year and, respectively, a strict control of the Court of Accounts regarding the fulfillment of this obligation). In addition, I confirm art. 23 of the Criminal Procedure Code, in general, a transaction or mediation regarding the claims of the civil party can also operate, aspects of principle unknown to fiscal matters.
At this point, the solution represented by Decision no. 867 of December 14, 2021 of the Constitutional Court. Thus, the Court held that “(…) the phrase “claims of the civil party”, contained in the provisions of art. 10 para. (1) from Law no. 241/2005 for the prevention and combating of tax evasion, in the wording prior to the amendment by Law no. 55/2021 regarding the amendment and completion of Law no. 241/2005 for the prevention and combating of tax evasion, is unconstitutional”. The constitutional court delimited the “claims of the civil party” from “damage” in a purely civil manner, as if the tax office had the availability to constitute itself as a civil party with the tax obligations owed by a taxpayer, and not the legal obligation to pursue the collection of tax obligations owed by a taxpayer. However, Decision no. 867/2021 of the Constitutional Court is useful from several points of view:
– In practice, this decision and the reasoning of the Court were the basis of the reorientation of the practice of the prosecution units and the courts, which began to approve without whims judicial expertise in order to determine the damage caused (the basis is represented by par. 53 of Decision no. 867/2021, where it was explicitly stated that the “damage” corresponds to a proven amount of the claims).
– Equally, the Decision of the Constitutional Court no. 867/2021 constituted the engine for the sanctioning by the criminal courts of a type of tax behavior, considered possible by the Court: “the possibility (…) to exercise the right to claim reparations abusively, with the aim of excluding access the defendant from the benefit of the cause of reduction of the sentence” (par. 58). Thus, a judicial practice was outlined in the sense of finding, by the criminal courts, the incidence of the provisions of the O.U.G. no. 69/2020, with the consequence of exonerating the accused persons from the payment of ancillary fiscal obligations, in the conditions in which they proved that they had extinguished the main fiscal obligations, although the accessories constituted the object of the “claims of the civil party”.
– In par. 50 of the Decision, the Constitutional Court recalled, with reference to the Decision of the High Court of Cassation and Justice no. 17 of October 5, 2015, that the settlement of the civil side in tax evasion cases will be carried out taking into account the provisions of the Fiscal Procedure Code, and not the provisions of the Civil Code, that is, exactly what we also pointed out above. Moreover, the Constitutional Court shows, the convicted person can only be obliged to pay the main and accessory fiscal obligations, under the terms of the Fiscal Procedure Code.
We can therefore preliminarily conclude, with full grounds, that from the analysis of the applicable fiscal provisions, corroborated with the interpretations of the Constitutional Court, respectively the High Court of Cassation and Justice, the “civil action” in tax evasion cases is in reality a fiscal action, through which the fiscal bodies requests the obligation of a taxpayer to pay the main and ancillary tax obligations. The taxpayer’s liability is therefore a fiscal liability, determined in accordance with the provisions of the fiscal law (Fiscal Code, Fiscal Procedure Code, other special normative acts in fiscal matters) and not a type of tortious civil liability analyzed in accordance with the provisions of common law (civil legislation ).
Termination of the criminal process as a result of the statute of limitations and the effects on the trial of the fiscal action
In the sense of art. 25 para. (5) of the Criminal Procedure Code, in case of termination of the criminal process based on art. 16 para. (1) lit. f) of the Criminal Procedure Code as a result of the occurrence of the prescription, the criminal court will resolve the civil action in the criminal process according to the civil law [according to the reference from the content of art. 19 para. (1) Criminal Procedure Code]. However, correctly corroborating this legislative solution with those previously presented:
– If he would be placed in such a situation in the case of a tax evasion offense provided for by Law no. 241/2005, following the determination of the occurrence of the statute of limitations in criminal matters, the court should judge the case according to the fiscal law [according to art. 2 of the Old Fiscal Procedure Code, art. 3 of the New Fiscal Procedure Code and Decision no. 17/2015 of the High Court of Cassation and Justice].
– The criminal court will resolve a genuine fiscal dispute: on the one hand, the tax would present its claims within the term and under the conditions of art. 20 Criminal Procedure Code, requesting the reparation of damage consisting of main and accessory fiscal obligations; on the other hand, the taxpayer would defend and contest, in whole or in part, the alleged tax liabilities. The judge becomes, by the will of the legislator, at the same time, a tax inspection body (in the sense of the tax law, if tax obligations have never been established by a tax administrative act, and this is done for the first time before the criminal court, by the judge who evaluates the damage caused, i.e. determines the main and ancillary fiscal obligations, we are in the presence of a genuine fiscal inspection activity), fiscal dispute resolution body (on the one hand, the judge must apply the fiscal law, which provides the right the taxpayer in a tax appeal; on the other hand, in the absence of a tax appeal resolution body, the judge will fulfill this mission himself) and tax litigation court that sometimes judges in the first and last instance (if the incidence of the statute of limitations has been established in the appeal, in principle the decision that will be given in the settlement of the civil action is final).
It should be pointed out that, in order to justify the settlement of the civil action (fiscal action) in the criminal process, some courts refer to the Decision of the Constitutional Court no. 586 of September 13, 2016. In the case, the Constitutional Court decided that “the provisions of art. 25 para. (5) of the Criminal Procedure Code, with reference to the provisions of art. 16 para. (1) lit. f) of the Criminal Procedure Code, are unconstitutional in terms of leaving the civil action unresolved by the criminal court, in the case of the termination of the criminal process, as a result of the intervention of the prescription of criminal liability”, keeping in essence the following:
– The procedural solution from that moment, in the event that the prescription of the criminal action is established, allows the injured person, constituted as a civil party in the criminal process, to address the civil action to the civil court.
– Such a possibility, although it gives access to justice, is likely to affect the right of the injured person to judge the case within a reasonable period, since the duration required for the trial of the civil action would be added to the time period that has already elapsed until the moment when the prescription of the action is established criminal.
In our opinion, these speed considerations that substantiated the Decision of the Constitutional Court no. 586/2016 and determined the intervention of the legislator in the sense of establishing the obligation to resolve the civil action by the criminal court, they do not find their application in the case of tax evasion crimes because:
– Unlike a simple individual, the tax administration can determine the damage by itself, by issuing some tax administrative documents following a tax inspection. Fiscal administrative acts become opposable to taxpayers from the moment of their communication and become enforceable within 45 days. Subsequently, the tax office can enforce them directly, without needing the competition of the court or other public authority.
– The tax administration is not obliged to suspend the resolution of the tax appeal in the case of parallelism with a criminal procedure, being able to continue the tax procedure without problems, in the sense of determining, definitively, the main and accessory tax obligations that it has to recover from the taxpayer.
In addition, it should be noted that there are other working hypotheses that could be taken into account, when interfering with proceedings, even if the provisions of the Criminal Procedure Code. Thus, in many situations we can also talk about a fiscal procedure that developed in parallel with a criminal procedure and that can be in various stages, as follows:
(a) If fiscal obligations have been determined through a fiscal administrative act, the stage in which the said fiscal procedure is located must be determined:
– If there is a tax procedure in progress, before the tax court, it is necessary to give priority to the tax procedure, following that the extent of the tax obligations already determined by a tax administrative act will be established by a final decision.
– If the fiscal procedure is suspended in the phase of resolving the fiscal appeal, in the case provided by art. 277 para. (1) lit. a) Fiscal Procedure Code – the body that carried out the control activity notified the law bodies regarding the existence of indications of the commission of a crime in relation to the means of proof regarding the establishment of the tax base and the finding of which would have a decisive impact on the following solution to be given in the administrative procedure – in our opinion, the incidence of the statute of limitations and the rejection of the criminal action should lead to the resumption of the procedure for resolving the tax appeal. It is real that art. 277 para. (4) of the Fiscal Procedure Code mentions that “The final decision of the criminal court by which the civil action is settled is enforceable against the competent settlement bodies, regarding the amounts for which the state has constituted a civil party”, but we believe that this text should be viewed with reservations. Thus, in order to protect the taxpayer’s right of access to justice, the procedure that is active and should continue is the fiscal procedure, without judging the civil action in the criminal process.
(b) In the often encountered situation where prior to the initiation of the criminal procedure, a fiscal procedure took place, within which no fiscal obligations were established for the facts that were the subject of the criminal action, our firm opinion is that the fiscal procedure can no longer be resumed by the court or the prosecutor, who are subject to the provisions of the fiscal law. In fact, in this working hypothesis, the period and the tax obligations have been verified, and the tax law – which the criminal court or the prosecutor must respect – establishes an express prohibition of resumption of the tax verification, of any type. Thus, according to art. 118 para. (3) Fiscal Procedure Code, “The fiscal inspection is carried out only once for each type of fiscal debt and for each period subject to taxation”. The exception to this rule – the institution of fiscal reverification, provided by art. 128 Fiscal Procedure Code – has a certain type and, in our opinion, it is impossible to apply in the criminal process.
(c) Finally, if the fiscal body concluded the fiscal inspection without establishing fiscal obligations, but notified the criminal investigation bodies because it assessed that a crime had been committed, and the statute of limitations intervened in the case, the judicial bodies have no right to regulate the “civil action” in any way. In this case, taking advantage of the favorable provisions of the current art. 111 of the Fiscal Procedure Code – which suspends the limitation period in case of notification to the criminal investigation bodies – the tax office will be able to resume the fiscal inspection.
We are in the presence of a working hypothesis in which, once again, it would be absolutely useless to resolve the civil action in the criminal process in the conditions where the tax office has decided not to establish fiscal obligations for the period and for the taxes in question, preserving, under the shelter of a suspension of the limitation period, the possibility of establishing fiscal obligations. It should be noted that, as clearly results from the reading of the current form of art. 111 para. (2) lit. e) Fiscal Procedure Code, the limitation period – and therefore the possibility of resuming the fiscal inspection, in order to determine the main and accessory fiscal obligations – starts to run again from the date of the definitive stay of the solution to resolve the criminal case. In other words, the legislator foresaw the fact that the civil action (fiscal action) will be resolved only in the fiscal procedure, where it belongs.
And yet, the prescription …
We have shown, above, that the provisions of the Old and New Fiscal Procedure Code establish two statutes of limitation in fiscal matters:
– a general limitation period of 5 years, which runs differently, from January 1 of the fiscal year following the one in which the tax basis was established (the Old Fiscal Procedure Code, also applicable to our case) or from the date of July 1 of the fiscal year following the one in which the tax base was established (New Fiscal Procedure Code);
– a special limitation period of 10 years, applicable in the case of fiscal obligations resulting from the commission of a crime, which begins to run from the date of the commission of the act.
Therefore, simply applying the provisions of the tax law, in the scenario described, we will note that more than 10 years have passed since the date of commission of a crime, so that the right of the tax body to establish tax obligations is prescribed.
In the Hitchcock-worthy scenario of the Romanian criminal process, in the case of a tax evasion crime, the criminal judge will substitute himself for the tax inspection body, and the appeal resolution body and the tax litigation court and will judge, as if it were a Holy Trinity of the fiscal process (legal fiction), sometimes in the first and last instance (if it is a criminal appeal court), the civil action (fiscal action). This action will be judged according to the fiscal rules – from which the judge cannot choose only those that suit him – with the priority application of the provisions of art. 91 and 93 of the old Fiscal Procedure Code, respectively art. 110 and 112 of the New Fiscal Procedure Code.
Thus, if the tax had been put in the position to establish fiscal obligations with the same state of facts in front, the appointed fiscal inspection team had the obligation to ascertain the fulfillment of the limitation period and to order, under the conditions of art. 93 of the Old Fiscal Procedure Code or art. 112 of the New Fiscal Procedure Code, termination of the procedure for issuing the title of fiscal debt. Symmetrically, the criminal court must apply the same provisions and order the rejection of the civil action, as a result of the fulfillment of the limitation period provided by art. 91 of the old Fiscal Procedure Code or art. 112 of the New Fiscal Procedure Code.
This is undoubtedly the simple and logical solution, in accordance with the interpretation of the tax law, including that made by the High Court of Cassation and Justice and respectively by the Constitutional Court.
However, for the hypothesis in which, ignoring the law, the criminal court would decide to judge the civil action, in a tax evasion file, with the application of common law, the solution that would be reached would be the same:
– According to art. 22 of Decree no. 167/1958 – under the conditions that, in relation to the period for which fiscal obligations are claimed, we would be under the rule of the Old Civil Code – “Taxes and charges owed to the state, the contribution for social security (…) remain subject to the prescription provisions of special laws”. In our case, the special law is the fiscal law (in principle, for the same period, art. 91 of the Old Fiscal Procedure Code).
– After the entry into force of the New Civil Code, the civil law is represented by the provisions of art. 1381 – 1395 Civil Code (Reparation of damage in case of tortious liability) and notations of art. 1394 of the Civil Code, worded as follows: “In all cases where the compensation derives from a fact subject to a longer statute of limitations by the criminal law than the civil one, the statute of limitations for criminal liability also applies to the right to civil action.” In other words, unequivocally, on the date on which the criminal action is extinguished, the right to action in civil liability also extinguishes correlatively.
The taxpayer’s right to refund the recorded amounts and to pay the related fiscal interest
In terms of the prescription of the civil action, the taxpayer has the right to the restitution of the amounts recorded in the damage account and to the payment of the related fiscal interests. In this sense, the legal basis is represented by the provisions of art. 168 Fiscal Procedure Code, by those of the Order of the Minister of Public Finance no. 1899/2004 and respectively the provisions of art. III, point 3.1 of the Joint Order of the Minister of Public Finance and ANAF President no. 2047/2016.
This last evoked text is written as follows:
The amounts to be returned from account 50.86.09 “Available from sums received representing the damage caused and recovered under the conditions of art. 10 of Law no. 241/2005” are those established by decisions of judicial bodies or other competent bodies according to the law, in compliance with the provisions of art. 168 of Law no. 207/2015 regarding the Fiscal Procedure Code, with subsequent amendments and additions and the provisions of the Order of the Minister of Public Finance no. 1,899/2004 for the approval of the Procedure for restitution and reimbursement of amounts from the budget, as well as granting interest due to taxpayers for amounts returned or reimbursed beyond the legal deadline.
In principle, according to the reference made in the special procedure, the judicial bodies (as the case may be, the court or the prosecutor) should order, by “judgment” (generally speaking), the restitution of the amounts recorded in the damage account at their disposal. Based on such provisions, the competent fiscal body according to the law would have to fulfill a simple formality, the effective restitution of the principal debt, with the payment of the associated fiscal interests from the date of payment until the date of the effective restitution.
We believe that there is no legal impediment that, in the event that following the establishment of the prescription of the civil action, the court or the prosecutor omits to also order the restitution of the amounts recorded at their disposal, the taxpayer may directly request the restitution of the respective amounts and the payment of interest. On the one hand, the provisions of art. lead to this conclusion. 168 para. (1) Fiscal Procedure Code (the taxpayer has the right to refund the amounts, this right must not be recognized by the court or the prosecutor), and on the other hand those of art. 182 para. (1) Fiscal procedure code, which conditions the payment of fiscal interest from the state budget on the existence of an explicit manifestation of will in this regard from the taxpayer.
By referring to the business used as an intellectual stimulus, some conclusions are necessary:
– In the conditions where the interpretation is clear, we say it too: the prescription refers to the fiscal rules (art. 91 of the old Fiscal Procedure Code, respectively art. 110 of the new Fiscal Procedure Code).
– If the civil law would still apply, the analysis of the provisions of art. 22 of Decree no. 167/1958 (under the empire of the old Civil Code), respectively art. 1394 Civil Code leads to the same conclusion, namely that the civil action cannot survive if the prescription of the criminal action has been established.
– In our opinion, which is more radical, in all situations where obligations have not been established by fiscal administrative acts issued by the competent fiscal bodies, there cannot be a fiscal action to be judged by the criminal court (so-called actions civil), the estimates from the indictments or the mimetic constitutions by the civil side of the tax office not being sufficient.
– The provisions of the Criminal Procedure Code regarding civil action are inapplicable and useless in fiscal matters.
– Compliance with the law cannot be optional, therefore the logical solution, within the limits of the powers established by the Fiscal Procedure Code, is that only the fiscal bodies can establish fiscal obligations. Not extinguished by one of the methods provided by law, they may constitute damage within the meaning of Law no. 241/2005.
– In pending cases, it is necessary to immediately identify a solution for the establishment of tax debts and give the possibility to the taxpayer to challenge the tax debts (e.g. suspension of the criminal process until the clarification, administrative and/or judicial, of the existence of a title of tax debt and its extent ).
– If the idea of constituting a civil party is maintained according to art. 19 of the Criminal Procedure Code, this should be done only on the basis of an active claim (more precisely, if the tax office did not establish tax obligations for the period 2009 – 2012, although it inspected it taxably, it should not be allowed the criminal court or prosecutor to do so).
– The judgment of a fiscal action according to its nature (the state’s claims to have repaired the damage caused by the evasion of fiscal obligations) cannot be done by the criminal court, according to the fiscal law. It would be useful in this respect to have a regulation modeled on the French tax procedure, which also regulates the applicable procedure in the case of tax evasion offences.
– Correlation of procedures, respecting the principles of ne bis in idem and legal security, are still necessary. Thus, for example, if the tax has already inspected a period and a tax/contribution, neither it nor the tax court or the prosecutor should return to these matters except under the strict conditions of fiscal reverification (art. 128 NCPF).
A detailed version of this contribution, with scientific references, has been published on the website juridice.ro and in Revista de note și studii juridice on 19 January 2023 (https://www.juridice.ro/817232/prescriptia-actiunii-civile-in-procesul-penal-in-cauzele-de-evaziune-fiscala.html).
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