Ștefan Diaconescu, Partner
Alexandru Terța, Partner
With the implementation of the new national e-invoicing system RO e-Factura, the national legislator considered it necessary:
- to update the provisions of Law no.241/2005 on preventing and combating tax evasion in order to introduce new crimes, as well as
- to amend the circumstances in which some crimes are not punishable or are punished with reduced penalty
The new regulations show an aggravation of criminal liability, introducing new crimes, supplementing existing crimes or increasing penalty limits in certain cases (3-10 years for tax evasion in its base form, as opposed to 2-8 years in the past).
At the same time, in regards to the causes of non-punishment or reduced punishment, the new regulations lead to a more difficult situation for taxpayers.
Thus, the legislator has extended the meaning of the phrase “legal documents” in art.2 let.c) of the Law by introducing the notion of an electronic invoice issued, transmitted and received using the e-Factura system.
Also in art.9 para.(1), letters c), d) and e) have been amended and the provisions now also cover situations where the crime is perpetrated with electronic documents. In the same article, two new letters, h) and i), criminalize acts perpetrated exclusively in electronic form.
Another new element introduced by Law no.126/2024 is Articles 92 and 93. The first concerns acts perpetrated in connection with VAT declarations and information by diminishing the resources of the state budget, but the minimum limit of the damage has been set to EUR 1,000,000.
The second article refers to loan operations for the purpose of making payments of money resulting from the failure to record in the accounting documents the commercial transactions carried out and/or the income realized by one or more taxpayers.
The current regulation introduces substantial amendments to Article 10 of Law no.241/2005, concerning the circumstances for non-punishment or reduction of the penalty limits.
Thus, the new provisions allow the taxpayer to fully cover the damages up to EUR 1,000,000, increased by a fixed percentage of the amount of the damage, depending on the procedural moment at which the repair occurs, in order to apply a cause of non-punishment, respectively:
– the damages increased by 15% plus interest and penalties shall be paid within a maximum period of 30 days following the completion of the inspection carried out by the competent bodies, on the basis of which the damage is identified;
- the damages increased by 25% plus interest and penalties shall be paid during the criminal proceedings;
- the damages increased by 50% plus interest and penalties, shall be paid during the pre-trial or trial proceedings, until a judgment is delivered in first instance;
- the damages increased by 100% plus interest and penalties, shall be paid during the appeal proceedings, until a final judgment is rendered.
Article 10 also provides for causes for the reduction of penalties indicated by the Law, namely:
- these sanctions are reduced by half if the damage shall be fully compensated by actual payment by the first trial date and, at the same time, the judicial body having the possibility to apply a fine, if the damage established does not exceed EUR 1.000.000;
- these penalties shall be reduced by half if the perpetrator informs the prosecution or tax authorities of his/her crime and contributes to the prosecution of other participants in the crime, at the latest on the expiry of a period of one year from the completion of the crime and before the prosecution has been notified of it.
As regards the circumstances for aggravating criminal liability, these have been reconfigured through the new legislative amendments. In cases of damages in excess of EUR 500.000, the sanctioning limits are increased by 3 years and when the deed generated damages in excess of EUR 1.000.000 the base limits of sanctioning are increased by 5 years, thus extending the application of the base legal provision, in the standard version.
There are also new developments in the statute of limitations of criminal liability: the introduction of Article 101 in Law no.241/2005, which provides for a different moment from the general rule from which the statute of limitations period may start, i.e. the date of referral to the prosecution or tax authorities, but no later than 10 years from the date of perpetration of the crime.
Therefore, the statute of limitations has been extended by a maximum of 10 years compared to the general rule in the Criminal Code, i.e. that it starts from the date of the perpetration of the crime.
Regarding the jurisdiction to prosecute cases concerning the crimes referred to in Articles 8, 9 and 92 of the Law, the legislator has assigned it to the National Anti-Corruption Directorate when the damage exceeds 10 million RON.
