Recently Costaș, Negru & Asociații has obtained two favourable judgements in two cases, involving two affiliated companies from the same group T. – T. R. S.A. and T. S.A. The cases involved the judgement of contraventional complaints filed against antifraud inspectors, in the context of two verifications surrounding the companies’ compliance with RO e-Transport system standards.
In the first case, T. R. S.A. was verified in august 2024 by a team of inspectors from the Regional Directorate for Fiscal Antifraud 6 Oradea, regarding the compliance with the regulations set forth in the Emergency Ordinance no. 41/2022 regarding RO e-Transport. At that time, the Ordinance regulated that it is not possible to apply the confiscation of a sum of money equivalent to the value of the transported goods as a complementary sanction if the tax authority notices the existence of supporting documents related to the transport of goods in the context of a following verification.
Despite this new regulation, the tax authorities gave a warning to our client as a main sanction, while also confiscating a sum amounting up to 116.592,61 lei, which is the equivalent of the transported goods. The legal ground for this sanction was, according to the tax authorities, art. 13 para. 2 of the old version E. O. nr. 41/2022, out of force at the time, which accentuates the profoundly illegal nature of the sanction.
In the contraventional complaint, we have argued that the tax authority has unlawfully applied this sanction based on this legal text, as it constitutes a breach of the legality principle which is applicable in tax matters. Furthermore, even by virtue of the new version of the Ordinance, this sanction is unjustified given that client has provided the tax authorities with the supporting documentations which clearly highlighted all the relevant information regarding the transported goods. The Court of first instance has admitted our complaint, applying the principle of the more favourable contraventional law, as art. 13 para. (2) had been modified during the course of the trial by the adoption of E.O. nr. 129/2024 from November 2024. The new text states that the confiscation as a complementary sanction is only applicable if a new contravention of the same kind is committed within 12 months after receiving a sanction for the first contravention committed. Therefore, by applying this principle, the court has admitted our complaint, which rendered the complementary sanction void.
The tax authority proceeded to file an appeal against this decision, denying the need to apply this fundamental principle and arguing that the sanction is justified since the client did not upload the data surrounding the transport of goods. We have outlined the position of our client, requesting that the appellate court maintain the solution of the first court, arguing that under the new legislation, the reason for the confiscation is to sanction the offenders who persist in committing the same contraventions, which is not the case in our client’s situation. Furthermore, even at a conceptual level, the sanction was disproportionate given the amount of money which was confiscated, which surpassed the maximum threshold of the permitted fine which the tax authorities could have applied by virtue of E.O. no. 41/2022. The appellate court has validated our arguments and denied the appeal.
In the second case, the driver of the transport whose beneficiary was Company T. S.A. was verified regarding the same matters by the Regional Directorate for Fiscal Antifraud 2 Constanta. The tax authorities requested the driver that they present the UIT code corresponding to the goods they were transporting. They mistakenly presented a wrong UIT Code, for which the tax authorities held the client accountable instead and applied a fine. During the proceedings before the first court, we have argued that this sanction is completely unjustified, since the offence was not committed by the client. Furthermore, even though the client had contractual relationships with the driver and they acted as an agent on the client’s behalf, the contraventional liability of a company could be applicable only if the company has accepted the committing of the contravention or if the contravention was committed for the benefit of the company, however none of these cases was applicable to our client. The first court has validated our arguments and admitted the complained and rendered the contraventional report void.
The tax authorities have filed an appeal again, requesting that the appellate court invalidate the decision of the first court. They tried to argue that, in reality, the beneficiary of the transport was obligated to ensure with a significantly high degree of diligence that the driver or the transport operator would not omit to present the UIT code when the tax authorities ask for it. However, the appellate court has validated our arguments and rejected the appeal, which maintained the first court’s decision as a consequence.
In our view, these two cases should be taken into account by the fiscal authorities who are in charge of monitoring the companies’ compliance with RO e-Transport regulation, for a couple of reasons. First, although this aspect is inherent to any verification, whether it be a fiscal verification or a specific one, the tax authorities are bound to apply the law in the form which is in force at the moment when they ascertain that an offence had been committed which could determine the application of the fiscal legislation, not in an arbitrary manner and at its full discretion. Second, according to the good administration principle and the legitimate trust principle, the tax authority, being regarded as an administrative authority, shall conduct their activity in a predictable manner and by applying clearly worded norms, so that individuals could foreshadow what conduct shall they adopt in a certain situation, what is the consequence of them not adopting said conduct, while also consolidating their trust in the public administration. It is regrettable though that even at this very moment, there are tax authorities which do not tackle the quintessence of the principle which govern their activity and disregard them so easily, leading to exposing the individuals to unjust verifications and even applying sanctions which have no grounds. In consequence, we appreciate the decisions of the appellate courts in our clients’ cases, as they strengthen the trust that at least at a jurisdictional level, any sort of inappropriate exercise of power will be invalidated.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by lwy. Mihuță Miruna, from the Arad Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 18 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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