According to article 179 of the Romanian Fiscal Procedure Code, the subject matter jurisdiction of the tax bodies is established according to the value of the subject of such appeal, its nature, as well as the applicant's quality.
According to article 179 par. 1 letter a) of the Code, "appeals regarding taxes, fees, contributions, customs liabilities and their ancillaries amounting to less than RON 500,000 are to be solved by the competent bodies that are established at the level of the general directorate where such applicants have their fiscal domicile or by the tax body that is established at article33 par. 3, as the case may be". According to article 179 par. 1 letter b): "appeals that are submitted by large taxpayers whose subject are taxes, fees, contributions, customs duties, as well as ancillaries thereof, whose amount is less than RON 500,000, are to be solved by the competent bodies that are established within such general directorates for the administration of large taxpayers"; and according to letter c) of the same article, "appeals regarding taxes, fees, contributions, customs liability and their ancillary whose amount equals or exceeds RON 500,000 and those submitted against documents issued by the central bodies are to be solved by the competent tax bodies set up at central level".
We should underline the fact that in case of appeals submitted against an administrative tax act issued by the central body, the jurisdiction to solve it is always to stay with the competent bodies set up at the central level. This is how the legislator here laid out a corollary of the principle of hierarchical subordination which governs the activity of administrative bodies.
As provided under article 179 of the Fiscal Procedure Code, the threshold amount is of 500,000 RON, which, according to article 179 par. 5 may be recurrently updated by a Government Decision. Besides, according to point 5.4 of the Tax Administration National Authority (A.N.A.F.) Order no. 519/2005 "the jurisdiction to solve the appeals is established according to the total quantum of the contested amounts, representing taxes, fees, contributions established by the tax body, as well as their ancillaries, or the total quantum of the taxes, fees, contributions approved for reimbursement, respectively, refunding, as the case may be."
The second thesis of point 5.4 is arguable. Thus, for example, if, after the settlement of a reimbursement with negative amounts of VAT with reimbursement option, there will be differences of less than the threshold of 500,000 RON which only diminish the claimed reimbursement, but do not determine the VAT to be paid, and the tax approved for reimbursement is higher than 500,000 RON, according to point 5.4 the body of competent jurisdiction to solve the appeal is established according to the amount of the tax approved for reimbursement, the appeal body being that of the central level, even though the appeal is filed against the diminution of the tax claimed for reimbursement, an amount which is less than the threshold of 500,000 RON, where the jurisdiction should belong to the appeal body at the county level.
Appeals submitted against other administrative tax acts (measure order, decision concerning joint liability, compensation bill, notice of payment etc.) are to be solved by the tax body that is competent to issue such act, as it is provided under article 179 par. 2.
According to article 179 par. 3 of the Fiscal Procedure Code, appeals submitted by those that deem to have been harmed by an unjustified refusal are to be solved by the higher hierarchical body to the tax body that is competent to issue such act.
At the same time, according to par. 4, appeals submitted against administrative tax acts issued by authorities of the local public administration are to be solved by such authorities of the local public administration.
And, according to point 9.7 of A.N.A.F. Order no. 519/2005, in case the appellant should limit or increase the initially submitted claims, the authorized appeal body is to decline jurisdiction in favor of the competent appeal body.
In what concerns the territorial jurisdiction of the bodies set up to solve such appeals, the competence is to stay with the tax bodies within whose territorial jurisdiction is the fiscal domicile of the taxpayer.
Appeals submitted by branches of the legal persons, whose amount is less than RON 500,000, are to be solved according to point 5.5. of A.N.A.F. Order no. 519/2005, by the competent bodies that are established within the territorial general directorates for the administration of such branches and in whose jurisdiction they are located.
- 138/139 -
Concerning the4 bodies with competent jurisdiction to solve the appeals, according to point 178.1 of the Methodological norms approved by the Government Decision no. 1.050/2004, the competence to solve the appeals is to stay with the services/offices of appellate jurisdiction within the general directorates of the county public finances, respectively of Bucharest, or the General directorate of administration of large taxpayers, as the case may be. Tax bodies set up at the central level means, according to point 178.2, the General directorate of appellate jurisdiction within the National Agency of Tax Administration.
When the subject matter of the appeal consists in the receivable title concerning customs duties, the competence to solve the appeal shall stay with the general directorate of the county public finances or of Bucharest or the general directorate of administration of large taxpayers, if the amount is less than RON 500,000, respectively the specialized body within the National Agency of Tax Administration, when this threshold is attained.
Taking into consideration the fact that there is not a subordination relation between the bodies within the structure of the customs authority and the bodies of the general directorates of the county public finances or of Bucharest and, respectively the general directorate of administration of large taxpayers, this administrative appeal cannot be deemed to be an application for review, nor an appeal to a higher authority, but a sui generis administrative appeal[1] . And, when the competence to solve the appeals stays with the General Directorate of Appellate Jurisdiction within the National Agency of Tax Administration, we are dealing with an appeal to a higher authority that is exercised omisso medio.
According to the provisions of article 177 par. 2 of the Fiscal Procedure Code, republished, in case the competence of solving the appeal does not stay with the body that issued the contested administrative tax act, the appeal is to be submitted by such body, within 5 days of its registration, to the competent appeal body. And, according to par. 3 of the same article, in case the appeal is submitted to a tax body which lacks jurisdiction, such appeal is to be submitted, within the same 5 days of receipt, to the tax body that issued the contested administrative tax act.
As provided under point 3.1 of A.N.A.F. Order no. 519/2005, upon receipt of the appeal, the body that issued the contested administrative tax act will prepare the file of the appeal and the report including the proposed solutions. Preparation of the fiscal file is not compulsory when the issuing body has jurisdiction to solve the appeal.
According to point 3.2 of A.N.A.F. Order no. 519/2005, the fiscal file will consist of the following documents: the original copy of the appeal, with the signature of the empowered person and the stamp, the power of attorney, as the case may be, copy of the contested administrative tax act and its annexes, copies of the documents concerning the case to be solved, documents submitted by the appellant, the decision to apply the legal emergency measures and copy of the penal notice, as the case may be.
In case the competence of solving the appeal does not stay with the body that issued the contested administrative tax act, it will submit the whole fiscal file, as well as the report including the proposed solutions, to the body of appellate jurisdiction, but only after verifying the compliance with the procedural requirements, according to point 3.3 of A.N.A.F. Order no. 519/2005.
In case the appeal is filed directly to the body of competent jurisdiction, this shall submit it to the authority that issued the contested administrative tax act so that it should prepare the fiscal file, verify the compliance with the procedural requirements and the drawing up of the report including the proposed solution.
The report including the proposed solution, according to point 3.6 of the Order, comprises specifications concerning the fulfillment of the procedural requirements, mentions regarding the application of the legal emergency measures or the penal notice, as the case may be, and proposed solutions of the appeal, according to all the appellant's arguments and documents. The report shall be approved by the head of the authority that issued the contested administrative tax act.
If the filed documents do not prove the compliance with the appeal time limit and it is not possible to establish the date when the appellant was notified of the contested administrative act, the appeal will be deemed to have been submitted within the due time limit. In case the appeal is submitted by mail, the body that issued it has the obligation to enclose the envelope to the file.
According to point 3.10 of A.N.A.F. Order no. 519/2005, the persons who fail to observe the legal provisions concerning the notification of the administrative tax acts and do not enclose to their files evidence of the notification of the contested act and evidence of their submitting the appeal shall be held directly responsible.
- 139/140 -
In what concerns the legal nature of the report including the proposed solution, administrative law literature[2] takes the view that the report, as it supposes an act of will of the public administration authorities that they carry out in order to fulfill their legal duties, but which in itself has no legal effects, represents a technical material operation of an intellectual character.
Thus, the report including the proposed solution in itself has no legal effects, but merely prepares the issuance of the decision that will produce legal effects. Therefore, it cannot be deemed to be an administrative act, but a merely material-technical operation, and, consequently, a prior procedural form to the issuance of the administrative act.
In order to clarify certain aspects concerning the appeal, according to point 9.9 of A.N.A.F. Order no. 519/2005, the appeal body may request the tax body to prepare a minutes in respect of the on-site investigation, by which no new debts may be established. The minutes, having the character of a material-technical operation, shall be signed by the tax body, and then communicated to the taxpayer. According to point 9.10 of the Order, no appeal may be submitted against the minutes prepared in respect of the on-site investigation, which shall be enclosed to the fiscal file.
At the same time, according to the provisions of article 183 par. 2 of the Fiscal Procedure Code, republished, in order to clarify certain aspects of the case, the appeal body may request the viewpoint of the specialist departments within the Ministry of Economy and Finances and the National Agency of Tax Administration or even within other institutions and bodies. According to point 9.1 of A.N.A.F. Order, the specialist departments will submit their points of view within 10 days at the most from the filing of such request. If such notified advice concerning a same case are contradictory or contrary to the appeal body's point of view, the case will have be submitted for discussion by the central fiscal commission within the Ministry of Economy and Finances, as provided under point 9.2 of A.N.A.F. Order no. 519/2005.
During the procedure, the body of competent jurisdiction, as provided under point 2.4 of A.N.A.F. Order no. 519/2005, cannot be substituted for the taxpayer as regards the factual and legal grounds underlying the appeal against the administrative tax act. And, in solving the appeal, according to article 183 par. 1, of the Fiscal Procedure Code, republished, the competent body is to check the factual and legal grounds underlying the issuance of the administrative tax act, and to analyze the appeal according to the parties' arguments, the invoked legal provisions, and the documents existing in the file of such case, the appeal having to be solved within the limits of the notification. At the same time, according to the provisions of article 183, par. 3 of the Fiscal Procedure Code, republished, the solution of the appeal is not to put the appealing party in a more difficult position than it was before it appealed. This is how, two principles of the civil procedure also become applicable in the fiscal procedure. It is, firstly, the case of the principle according to which the effects of the appeal are limited by the principle of the availability, namely the appeal is to be solved within the limits established by the appealing party, and, secondly, the case of the principle according to which the appeal is not to put the appealing party in a more difficult position than it was before it appealed, as dictated by the Latin phrase non reformation in pejus[3].
Joinder of parties. article 182 of the Fiscal Procedure Code governs joinder of parties to the procedure of solving the appeals, and, according to its par. 4, the provisions of the Civil Procedure Code regarding the permissive and compulsory joinder are to be applicable.
Legal literature on civil procedure takes the view that joinder of parties represents the union in one lawsuit of multiple parties, and, according to the way such party expresses its will, it may be either permissive or compulsory. Permissive joinder represents a third party's request to join in one action which was submitted by other parties, in order to protect his/ her own right (indispensable party) or to protect the right of a party to such case (indispensable party)[4] . Compulsory joinder refers to joining in a lawsuit a person who is not named as a party in it, independent of the person's will or even against it.
According to article 182 par. 1 of the Fiscal Procedure Code, republished, in order to solve the appeals, the body of appellate jurisdiction may join, ex officio or upon request, as the case may be, other persons whose legal tax interest is harmed further to the issuance of the decision to solve the appeal, with the applicant having to be called for a preliminary hearing.
According to point 8.1 of A.N.A.F. Order no. 519/2005, permissive joinder is a means of joining upon request in the judgment of appeals of third parties whose legal tax interest is harmed further to the issuance of the decision to solve the appeal, and, according to point 8.2, compulsory joinder is a means of participation of third parties in judgment of appeals which are joined ex officio or upon request by the tax bodies. Should the request to join in the case be introduced by the appellant, it will have to include the factual and legal grounds.
In case more persons participate in the realization of an income, but only one or some of them have filed an appeal, according to article 175 par. 5 of the Fiscal
- 140/141 -
Procedure Code, republished, the appeal body will ex officio involve all the subjects fiscally registered as participants in the joint realization of a taxable income. In such case, the effects of the appeal are also extended to the other participants in the realization of a taxable income.
The body of competent jurisdiction to solve the appeal shall adjudicate upon the admissibility of the request for joinder in the case, and, should it not find it admissible, send the applicant a notification. Should the request for joinder in the case submitted by the applicant be admitted, this shall be notified to the applicant, as provided under point 8.3 of A.N.A.F. Order no. 519/2005.
Ex officio joinder in the case will be made by means of notification by the body of competent jurisdiction to solve the appeal, according to point 8.4 of the Order.
According to point 8.5 of the Order, when joinder is meant to defend a party's right, it has an accessory character, and when it aims at realizing or maintaining one's own tax interests, joinder has a main character, according to point 8.6. Moreover, in what concerns formal requirements, the request for a main joinder in the case must observe the requirements laid down for the form and contents of the appeal.
The request for joinder in the case may be submitted to the body of competent jurisdiction to solve the appeal up to the time of issuance of the decision to solve the appeal, according to point 8.7 of A.N.A.F. Order no. 519/2005.
According to the provisions of article 182 par. 3 of the Fiscal Procedure Code, republished, the person joined in the appeal procedure is to be informed of all requests and declarations of the other parties; this person is to have the rights and duties of the parties as a result of the fiscal legal relation that is subject to the appeal, and is also entitled to submit his/her own applications and even new evidence. At the same time, all procedural acts following the moment of the applicant's joining in the case are to be also carried out in his/her case.
Withdrawal of the appeal. After drawing up and filing the appeal, but up to its solving by means of a decision or an order, the appellant party has the possibility to withdraw its appeal, as stated by article 178 of the Fiscal Procedure Code, republished. According to point 4.1 of A.N.A.F. Order no. 519/2005, the request for such withdrawal shall include the signature of the applicant or his/her representative, as well as the stamp, in case of legal persons. Also, according to point 4.2 of the Order, natural persons will have to enclose a copy of their ID.
Withdrawal of the appeals does not trigger the loss of the right to submit a new appeal within the generally allowed appeal time limit, due to which the body of appellate jurisdiction is to communicate the applicant the decision that confirms the waiver to such appeal after the expiration of the generally allowed appeal time limit.
Joinder of causes of action. In case the competent bodies deal with two or more appeals submitted by the same natural or legal person against receivable titles or other administrative tax acts issued by the same bodies or other tax bodies, concerning the same category of fiscal duties or different types thereof, but influencing each other in what concerns their amount, according to point 9.5 of A.N.A.F. Order no. 519/2005, these will proceed to join the several causes of action, when this promotes efficiency in solving the case. Still, the joinder of causes of action shall not result in a different appellate jurisdiction than the one established for each individual administrative tax act.
Conflict of interest. Refraining and challenge. According to point 9.11 of A.N.A.F. Order no. 519/2005, the provisions of article 40 of the Fiscal Procedure Code, republished, shall be duly applied in what concerns the procedure of solving the appeal. Thus, the civil servant aware of being under a conflict of interest is obliged to inform thereof the head of the tax body and to refrain from carrying out the procedure.
Refraining is to be immediately decided by the head of such tax body or the higher hierarchical body. In case the civil servant that is under a conflict of interest does not refrain, the taxpayer involved in the procedure may submit his/her challenge.
The challenge of the civil servant is to be immediately decided upon by the head of the tax body or the higher hierarchical body. The decision that rejects an application for challenge may be contested before the court of competent jurisdiction.
Solving the objections. According to article 183, par. 5, the body of appellate jurisdiction is to decide first on the objections concerning a specific point of law or procedure, and when these are found to be grounded, a thorough analysis of the cause is no longer to be carried out.
In what concerns objections to procedure, point 9.3 of A.N.A.F. Order no. 519/2005 enumerates them as such: failure to observe the appeal time limit, lack of entitlement to pursue the proceeding etc.
Objections to the substance of claims may be as follows, according to point 9.e of the Order: the lack of jurisdiction of the body which issued the contested act, prescription, the objection provided under article 102 par. 3 of the Fiscal Procedure Code, republished, res judicata etc.
- 141/142 -
In accordance with article 7 of the Fiscal Procedure Code, which provides for the active role as a general principle of conduct in the administration of taxes and fees, during the procedure, the tax body is entitled to examine ex officio the actual state of fact, to obtain and use all information and documents that are necessary for a correct assessment of the taxpayer's tax state of fact, having in view all the relevant circumstances of each case. Paragraph 4 of the same article establishes that the tax body is to decide upon the manner and the amount of examinations, according to the circumstances of each separate case, and within the limits provided by law.
As provided under point 182.1 of the Methodological norms for the enforcement of Government Ordinance no. 92/2003, "according to article 183 par. 3 of the Fiscal Procedure Code, the appealing party, joining parties and/or their empowered persons may submit any new relevant evidence in support of their case before the tax body, even when this has not yet been assessed by the tax body".
In what concerns evidence that can be brought during the tax procedure, article 49 of the Fiscal Procedure Code, republished, establishes that "for the determination of the tax state of fact, the tax body is to administer means of evidence, under the law, and may resort to the following:
a) request of information of any kind from taxpayers or other persons;
b) request of expert studies;
c) use of documents;
d) performance of on-site investigations."
In what concerns the assessment of the administered evidence, article 49 par. 2 of the Fiscal Procedure Code, establishes that "the administered evidence is to be corroborated and assessed by considering the weight of evidence as recognized by law". Having in mind that the provisions of the Fiscal Procedure Code are to be completed with those of the Civil Procedure Code, the weight of evidence to be considered is that established by the evidentiary rules stemming from the civil procedure.
Weight of evidence. According to article 64 of the Fiscal Procedure Code, republished, the taxpayer has the obligation to prove the documents and facts that grounded his/her declarations and any application submitted to the tax body. This is, consequently, an enunciation of the principle of the standard of proof as laid down by the general provisions of the law.
In this respect, the appealing party is to point out in its application the evidence which underlies its arguments and to bring this evidence before the appeal body. In case of an expert study, an on-site investigation or any other evidence supposing a higher level of complexity, the appellant is to request its admissibility in the filed application, the tax body ordering admissibility or rejection of such evidence after assessing its utility and relevance.
Therefore, the evidentiary rules established by article 52-66 of the Fiscal Procedure Code, republished, lay down the principle underpinning freedom of evidence, and, thus, resemble a lot to the rules provided under the Civil Procedure Code. We should underline the fact that some means of evidence receive a derogatory regulation from the general provisions, thus assuring the individuality of the evidentiary system set out by the fiscal procedure rules.
Taking as a starting point the opinions expressed in the legal literature on civil procedure, suspension represents an incident during the procedure of solving the appeal referring to the ceasing of the administrative procedure, due to certain circumstances depending on the parties' will or independent of their will. Suspension appears to be a guarantee of the observance of public interest, as well as a guarantee of the right to a fair trial and its consequences, the right of defense, the adversarial principle, the principle of equality.
Considering the nature of the cases and the rules governing them, legal literature[5] classified suspension in compulsory suspension, imposed by the mandatory legal provisions, and optional suspension, prescribed by the directory legal provisions.
In the field of the fiscal administrative contentious, the Fiscal Procedure Code refers both to suspension of the procedure of solving the appeal by administrative means (art. 184), and to suspension of the performance of the administrative tax act (art. 185).
According to the provisions of article 185 par. 1 "the filing of the appeal by following the administrative appeal way is not to suspend the performance of the administrative tax act". Consequently, the filing of the appeal will not have the effect of suspending performance, taking into consideration the fact that tax receivable titles become applicable ope legis when the tax duty falls due. Starting the forced performance on the basis of the executory receivable title, before following the prior administrative procedure, may result in severe consequences for the appealing party[6] .
For that reason, legal literature takes the view[7 ]that there is need for legal provisions which regulate the appeal's characteristic of suspending performance, just like the legislator proceeded with the other categories of legal acts, having the same financial-budgetary implication. We are referring to the administrative complaint, which, according to the provisions of article 32 par. 3 of Government Ordinance no. 2/2001 on the regulation of minor offences suspends performance, a fact which is likely to assure the offender the guarantee that, until justice is made, s/he is not to be deprived of certain amounts of money.
In what concerns the appeal prescribed by the Fiscal Procedure Code, suspension is always optional, the legislator providing for the tax body's possibility to order suspension, sometimes ex officio, other times, only upon the appealing party's request. ■
- 142/143 -
NOTES
[1] A. Fanu-Moca, Contenciosul fiscal, C. H. Beck, Bucuresti 2006. p. 213
[2] T. Draganu, Actele administrative si faptele asimilate lor supuse controlului judecatoresc potrivit Legii nr. 1/1967, Dacia, Cluj-Napoca 1970. p. 77
[3] V.-M. Ciobanu, Tratat teoretic si practic de procedura civila, National, Bucuresti 1997. vol. II, p. 351
[4] Idem, p. 325.
[5] I. Deleanu, Procedura civila, Servo-Sat, Arad, vol. II, p. 170, 173.
[6] C.-L. Popescu, Impactul dreptului la un proces echitabil asupra procedurii fiscale, in Revista de Drept Comercial, nr. 3/2001, p. 103.
[7] A. Fanu-Moca, Contenciosul fiscal, C. H. Beck, Bucuresti 2006. p. 229.
Lábjegyzetek:
[1] The Author is an Associate Professor, Head of the Public Law Department Faculty of Law, The West University of Timisoara.
Visszaugrás
