Free counseling of individuals in the field of taxation

Author:Florin-Ionel Trusca
Pages:283-295
SUMMARY

The article approaches the possibility of setting up public institutions that protect citizens' rights by providing a public service for counseling individuals in the field of taxation. The article analyzes both the taxpayers' assistance / assistance activity and the fairness of taxation or fiscal equity, principles on which Romanian tax legislation is based. The article argues that taxpayers' guidance / assistance is insufficiently regulated by looking at the possibility of setting up a public counseling service for individuals in the field of taxation. Seen as a service of public interest, free counseling of individuals in the field of taxation help to increase the welfare of taxpayers, on the one hand, and to prevent situations that may generate the triggering of fiscal control or forced execution mechanisms, on the other hand.

 
CONTENT
Free counseling of individuals in the field of taxation 283
FREE COUNSELING OF INDIVIDUALS
IN THE FIELD OF TAXATION
Florin-Ionel TRUŞC*
ABSTRACT
The article approaches the possibility of setting up public institutions that protect citizens'
rights by providing a public service for counseling individuals in the field of taxation. The article
analyzes both the taxpayers' assistance / assistance activity and the fairness of taxation or fiscal
equity, principles on which Romanian tax legislation is based. The article argues that taxpayers'
guidance / assistance is insufficiently regulated by looking at the possibility of setting up a public
counseling service for individuals in the field of taxation. Seen as a service of public interest, free
counseling of individuals in the field of taxation help to increase the welfare of taxpayers, on the one
hand, and to prevent situations that may generate the triggering of fiscal control or forced execution
mechanisms, on the other hand.
Cuvinte cheie: counseling, protection, individuals, principles, prevention.
Introduction
"It is clear to all that human rights are not rights as all others. Human rights have a
political, social, emotional burden that indisputably identifies them. They were the subject
of battle, of claims, they were not easily recognized in all cases." 1
In Romania, after the fall of the communist regime and the finalization of the
accession negotiations with the European Union, the legal norms of fiscal law
were not based on the subjective rights of the citizens.
"Open to those european countries which assume their values: respect for human dignity,
freedom, democracy, the rule of law, and human rights, and which are committed to pro-
moting them jointly, in accordance with their obligations following accession, The Union
shall promote economic, social and territorial cohesion as well as solidarity between
member states." 2
The acquis communautaire that Romania had to implement in order to be
admitted as a member state of the European Union and the fulfillment of the
measures established through the cooperation and verification mechanism forced
* PhD. student, National School of Political Studies and Public Administration, Doctoral School-
Administrative Sciences, Bucharest.
1 V. D. Zltescu and I. Moroianu-Zltescu, Landmarks for a human rights philosophy, IRDO,
Bucharest, 2003, pp. 10-11.
2 I. Moroianu-Zltescu, Human rights: an evolving system, Ed. I.R.D.O., Bucharest, 2008, p. 119.
Law Review vol. III, Special issue 2017, pp. 283-295
284 FLORIN IONEL TRUŞCĂ
the executive and the legislative power to take progressive national measures
ensuring the recognition and enforcement citizens' rights.
Thus, starting with 2004, the fiscal law in Romania - a sub-branch of financial
law - was structured by two codes, which aimed at systematizing the tax
legislation by bringing it in line with the principles of the European Union.
One of the codes regulated the legal framework for taxes that constituted the
state budget and the local budgets, being adopted by Law no. 571/20033 on the Fiscal
Code - repealed on 1 January 2016 by Law no. 227/2015 regarding the Fiscal Code4.
The Fiscal Code became the first fiscal law to promote the development of
clear legal rules so taxpayers can track and understand their tax burden and be
able to influence the impact of their financial management decisions on taxes.
The second code was adopted by G.O no. 92/2003 on the Fiscal Procedure
Code5, approved by Law no. 174/20046 - repealed on 1 January 2016 by Law no.
207/2015 on the Fiscal Procedure Code7 and was the basis for the application of
all the special legal acts addressed to the taxpayer. The Fiscal Procedure Code -
the first normative act governing the non-contentious administrative procedure
in the tax field - is based on both taxpayers' rights and obligations, while
regulating the work of central and local tax authorities to manage tax receivables.
Due to the constant concern of regulating revenues at European Union level,
in recent years the Romanian tax system has improved. However, shortcomings
remain as regards transparency of decision-making and access to information.
In a rule of law, collective needs and the means used to fulfill them must be
balanced in such a way that the burden of taxation on the members of society is
achieved in a fair way.
Access to information is also essential to enable citizens, which as creditors -
debtors, to monitor the work of the administration, to be informed of the
decisions that may affect them and to claim their rights.
In Romania, these things are done under the fundamental law that "regulates
the rights and freedoms of citizens considered as rules of political game, after which all the
citizens of the country, the public authorities, as well as the political actors involved in
the governance of the Romanian state".8
These facts give rise to good administration - a fundamental right guaranteed
by article 41 of the Charter of Fundamental Rights of the European Union9.
3 Published in Official Gazette Part I nr. 927 of december 23, 2003.
4 Published in Official Gazette Part I No. 688 of september 10, 2015.
5 Published in Official Gazette Part I No. 941 of december 29, 2003.
6 Published in Official Gazette Part I No. 465 of may 25, 2004.
7 Published in Official Gazette Part I No. 547 of july 23, 2015.
8 I. Vida, Constitutional Court of Romania: Political Justice or Politics of Justice ?, Official Gazette
R.A., Bucharest, 2010, p. 13.
9 The Charter of Fundamental Rights of the European Union was proclaimed by the European
Commission, the European Parliament and the Council of the European Union at the Nisa European
Council of december 7, 2000, as amended in Strasbourg on december 12, 2007. The Charter acquires
legal value on December 1, 2009, with the entry into force of the Treaty of Lisbon amending the Treaty
on European Union and the Treaty establishing the European Communities, signed in Lisbon on
Free counseling of individuals in the field of taxation 285
Ombudsmen also play an important role in achieving good governance. Gavin
Drewry said that Ombudsmen have a deterrent effect in cases of abuse from public
administration, and their recommendations show the irregularities identified in
their work, thus contributing to the spread of good governance principles.10
"The protection of fundamental rights is one of the essential elements of the identity
and movement of integration at the EU scale." 11
Principles regulated in the romanian tax legislation
1.1. Principles on which the taxes and duties regulated by the Fiscal Code are based
Principles initially established by Law no. 571/2003 regarding the Fiscal Code
were: the neutrality of fiscal measures; the certainty of taxation; fiscal equity at
the level of individuals; efficiency of taxation12.
At present, Law no. 227/2015 on the Fiscal Code regulates the following
principles: neutrality of fiscal measures; the certainty of taxation; fairness of
taxation or fiscal equity; the efficiency of taxation; predictability of taxation.
Among the principles laid down in the Fiscal Code that ensured the taxpayer's
correct guidance in order to meet his tax burden, so as not to be adversely affected,
include:
– the certainty of taxation13, ensures the development of clear legal rules that
do not lead to arbitrary interpretations and each taxpayer can pursue and
understand his tax burden as well as be able to determine the influence of their
financial management decisions on their tax burden;
– the effectiveness of taxation14, ensures the long-term stability of the provisions
of the Fiscal Code in such a way that it does not produce unfavorable retroactive
effects for natural or legal persons in relation to the taxation in force at the date of
their adoption of major investment decisions;
– fairness of taxation or fiscal equity15, ensures that the tax burden of each taxpayer
is determined on the basis of contributing power, respectively according to the size of
its income or property;
december 13, 2017, published in OJ C 306 of december 17, 2007. Romania ratified this Treaty by Law
no. 13/2008 for the ratification of the Treaty of Lisbon amending the Treaty on European Union and
the Treaty establishing the European Community, signed in Lisbon on december 13, 2007, published
in Official Gazette Part I No. 107 of february 12, 2008.
10 G. Drewry, ”The ombudsman: Parochial Stopgap or Global Panacea ?” in P. Leyland and T. Woods,
Administrative Law Facing the Future: Old Constraints and New Horizons, Blackstone Press, 1997, p. 83.
11 S. Van Raepenbusch, Institutional law of the European Union, Rosetti International, 2014, p. 356-357.
12 Art. 3 lit. d) of Law no. 571/2003 on the Fiscal Code, regulate: "d) the efficiency of taxation by
ensuring the long-term stability of the provisions of the Fiscal Code so that these provisions do not lead to
unfavorable retroactive effects for natural and legal persons, in relation to the taxation in force at the date their
adoption of major investment decisions."
13 G. N. Lcria, The Dictionary of the Fiscal Code, Economic Tribune, Bucureşti, 2010, p. 32.
14 Ibid, p. 81.
15 Art. 3, lit. (c) of Law no. 227/2015 on the Fiscal Code currently provides that "c) the fairness of
taxation or fiscal equity ensures that the tax burden of each taxpayer is determined on the basis of the
contributing power, respectively according to the size of its income or property."
286 FLORIN IONEL TRUŞCĂ
– predictability of taxation, ensures the stability of taxes, taxes and mandatory
contributions for a period of at least one year in which no changes can be made in the
sense of increasing or introducing new taxes, taxes and mandatory contributions.
Starting with 2016, the principle of tax effectiveness (which is essential to
protect the taxpayer against the arbitrary decisions of the executive authority)
has been modified, so that the legal norm no longer regulates the stability of the
provisions of the Fiscal Code in such a way that it does not produce retroactive
effects unfavorable to taxpayers.
1.2. Principles underlying the administration of taxes regulated by the Fiscal
Procedure Code
G.O. no. 92/2003 on the Fiscal Procedure Code regulates the following rights
and obligations: the unitary application of the legislation, the exercise of the right
of appreciation, the active role16, the official language in the tax administration,
the right to be heard, the duty of cooperation, the fiscal secret, the good faith.
Law no. 207/2015 on the Fiscal Procedure Code regulates the following rules of
conduct: the principle of legality, the unitary application of the law, the exercise
of the right of assessment, the active role and other rules of conduct for the fiscal
body, the official language in the tax administration, the right to be heard, duty
of co-operation, tax secrecy, good faith.
Among the principles laid down in the Fiscal Procedure Code, which provides
the taxpayer with access to information and the right to claim his rights, includes:
– the active role17, according to which the taxpayer receives guidance on the
application of tax legislation, by the tax authority, on request or ex officio;
– exercising the right of appreciation18, according to which, in exercising its
appreciation, the tax authority must take into account the opinion given in writing
by the tax authority competent to that taxpayer / payer in the course of taxpayer /
payer assistance and guidance, and the solution adopted by the taxpayer the fiscal
16 Art. 7 para. (5) of the G.O no. 92/2003 on the Fiscal Procedure Code, provided that: "(5) The
fiscal body shall guide the taxpayer in the application of the provisions of the fiscal legislation. Guidance may be
given either as a result of the taxpayer's request or on the initiativ e of the tax authority."
17 G. N. Lcrița, The Dictionary of the Fiscal Procedure Code, Economic Tribune, Bucharest, 2010,
pp. 184-185.
18 Art. 6 para. (1) of the Law no. 207/2015 regarding the Fiscal Procedure Code currently
provides that: "(1) The fiscal body is entitled to determine, within the limits of its responsibilities and relevance
of facts tax by using evidence provided by the law and adopt the solutio n based on the legal provisions, as well as
on the complete findings of all the edifying circumstances i n question at the time of the decision. In exercising its
discretion, the tax authority must take into account the opinion given in writing by the competent fiscal body
that taxpayer / payer in the course of assistance and guidance to taxpayers / payers and the approach adopted by
the tax authorities in an administrative fiscal or court by a final judgment previously issued for similar factual
situations to the same taxpayer / payer. Where the tax authorities find that there are differences between the
actual fiscal situation of the taxpayer / payer and the information considered in issuing a written opinions or
administrative action tax the same taxpayer / payer, the tax authority has the right to record their findings in
accordance with the actual tax and tax legislation and has the obligation to state in writing the reasons for not
taking into account the prior opinion."
Free counseling of individuals in the field of taxation 287
body in a fiscal administrative act or the court by a final judgment previously issued
for similar factual situations to the same taxpayer / payer.
Starting with 2016, the principle of active role has been changed, eliminating the
obligation of the fiscal authority to guide the taxpayer in the application of tax
legislation. At the same time, among the other activities carried out by tax authorities
in the administration of receivables, the assistance / guidance of taxpayers / payers,
which can be done on request or ex officio, has been included.
2. Assistance and guidance to taxpayers
The problems of social life codification, those of achieving a high performance of
social activity can not be treated empirically but directly related to social action,
given the specificity in which individuals manifest themselves as active personalities
within the structured social structure. This involves investigating and scheduling the
social action of people in a direct relationship with that particular framework in
which individuals manifest and integrate. 19
The administration must serve man, the citizen and his fundamental needs,
and ensure the satisfaction of the general interest of the human community.
Taxpayers must be guided through direct assistance at the headquarters, through
written correspondence, e-mail, telephone, and others. 20
According to the non-contentious administrative procedure in the fiscal field,
the administration of the tax receivables is accomplished through the following
activities:
– tax registration of taxpayers and other subjects of tax legal relationships;
– declaration, establishment, control and collection of tax receivables;
– resolution of appeals against tax administrative acts;
– assistance / guidance of taxpayers, on request or ex officio;
– applying sanctions under the law.
Among the above-mentioned activities, we analyze taxpayers' assistance /
guidance activities at the level of central tax authorities and local tax authorities.
Taxpayer assistance / guidance activity is a public service - free of charge,
stemming from the provisions of art. 31 and art. 47 of the Romanian Constitution of
199121, revised by Law no. 429/200322, according to which citizens have unrestricted
and free access to information. Moreover, the central and local public administration
authorities are obliged to ensure that citizens are properly informed about public
affairs and issues of personal interest. This implies that public administration
provides a transparent public service in the interest of citizens.
Analyzing the tax regulations regarding the assistance / guidance of taxpayers,
during 2004-2017, we find that at the level of the central fiscal bodies there is the
19 V. Ptulea, Treaties of legal and jurisdictional management, IRDO, Bucharest, 2010, p. 25.
20 E. Blan, Administrative procedure, University Ed., Bucharest, 2005, p. 63.
21 Published in Official Gazette Part I No. 233 of november 21, 1991.
22 Published in Official Gazette Part I No. 758 of october 29, 2003.
288 FLORIN IONEL TRUŞCĂ
Order of the Minister of Public Finance no. 137/200423 approving the Code of
Ethics of the civil servant in the tax administration, which carries out its activity in the
field of taxpayers' assistance and the Order of the President of the National Agency
for Fiscal Administration no. 1338/200824 for the approval of the Procedure for
taxpayers' guidance and assistance by tax authorities.
We can not say the same about the local tax bodies, for which besides the
constitutional provisions regarding the fundamental rights, freedoms and duties of the
citizens, there are no clear legal norms that ensure not only the correct information of
citizens on public affairs and problems of personal interest, but also the training of
civil servants regarding the service they are obliged to perform. The solution to
which individuals use - without limiting it - is the tax advice provided by some
private law entities, often against money, at the risk that the opinions issued by them
will not be taken into account by the tax authorities , or documents drawn up not to
be capitalized.
According to the Code of ethics of the civil servant in the tax administration, which
carries out its activity in the area of taxpayers' assistance, the transparency results
from the constitutional provisions and presupposes a condition of the dialogue,
respectively a tool for controlling the citizen on the activity of the executive.
Given the permanent nature of taxpayer assistance / guidance, public
authorities need to pay greater attention to this by forecasting the resources
needed to meet citizens' needs and expectations, so that tax authorities first carry
out prevention work in the field tax and then switch to fiscal control and
enforcement.
"The complexity of social demands raises a number of problems before the public
administration that need to be resolved. The society is aware of a continuous process of
multiplication and diversification of the tasks of the administration, which imposes
continuous improvement and improvement in the structure and activity of the
administration, using modern methods and techniques".25
At the level of the central fiscal body, the organization of the assistance /
guidance activity is carried out through the General Tax Assistance Directorate, a
structure within the National Agency for Fiscal Administration - the Ministry of
Public Finance.
According to art. 1 of the G.D. no. 520/201326 on the organization and
functioning of the National Agency for Fiscal Administration, as amended and
supplemented, the agency is organized and functions as a specialized body of the
central public administration, a public institution with legal personality,
subordinated to the Ministry of Public Finance, financed from the state budget ,
according to the law.
23 Published in Official Gazette Part I No. 66 of january 27, 2004.
24 Published in Official Gazette Part I No. 706 of october 17, 2008.
25 E. Blan, Administrative institutions, C.H. Beck, Bucharest, 2008, p. 21.
26 Published in Official Gazette Part I No. 473 of 30 july 30, 2013.
Free counseling of individuals in the field of taxation 289
One of the important roles that this institution has is that it provides guidance to
tax authorities for the uniform, fair and non-discriminatory application of tax
legislation in order to apply fair treatment to all taxpayers.
In accordance with Art. 217 - (I) of the Regulation of Organization and
Functioning of the National Agency for Fiscal Administration's own apparatus
approved by the Order of the ANAF President no. 1566 of 18 May 2017, the
subject of the General Assistance for Taxpayers' Service is to guide and assist
taxpayers and guide territorial structures in the application of tax legislation,
double taxation avoidance conventions and administration procedures. Among
the attributions of the General Assistance Directorate for Taxpayers we note that:
– monitor and coordinate methodologically the taxpayers' assistance and
assistance activity carried out by the territorial structures, while pursuing the
acceleration of the process of modernizing the tax administration's relationship
with the taxpayers, as well as increasing the degree of voluntary compliance of
the taxpayers;
– ensures, in the specific field of activity, the elaboration of the views of the
National Agency for Fiscal Administration regarding draft normative acts
regulating fiscal aspects for which the Agency has the quality of approval;
– develop press releases, tax informative bulletins to inform taxpayers about
legislative changes, their fiscal responsibilities, and information that can support
them;
– monitors how taxpayers 'requests are dealt with by taxpayers' territorial
structures;
– elaborates, in cooperation with the specialized departments of the National
Agency for Fiscal Administration and within the Ministry of Public Finance,
informative materials for the guidance of the territorial tax authorities and the
taxpayers (eg flyers, brochures, posters, guides, etc.) on general rights and
obligations and / or for a certain tax;
– select the problems arising from the application of the Fiscal Code, the
Fiscal Procedure Code and their subsequent legislation, received from the
taxpayers and / or from the territorial fiscal bodies, develop proposals for
solutions that are submitted for analysis to the specialized departments within
the National Agency for Fiscal Administration, the Ministry of Public Finance or
the Central Tax Commission, as the case may be;
– organizes and participates in meetings with taxpayers as well as with the
personnel involved in the specific activity of territorial taxpayer assistance
structures within the tax bodies subordinated to the National Agency for Fiscal
Administration in order to improve the activity.
From a theoretical point of view, at the central public administration level,
the taxpayer assistance / guidance activity provides assurance regarding tax
predictability and compliance with taxpayer rights.
290 FLORIN IONEL TRUŞCĂ
Improving public administration is possible by applying the principles of the
science of science, using sociological surveys and other research methods. 27
According to the Strategy of the National Agency for Fiscal Administration
on medium term 2013-2017, within the scope of assistance / guidance taxpayers
was established as a strategic objective the improvement of the voluntary
compliance. The specific objectives and related actions set out to achieve the
strategic objective were as follows:
– increasing voluntary compliance by continuing to apply the system of
incentives to pay for taxpayers in difficulty generated by the temporary lack of cash
availability;
– streamlining procedures and enhancing fiscal competitiveness of the
business environment, encouraging taxpayers to comply;
– increasing the quality of services offered to taxpayers;
– developing the channels of computer interaction with taxpayers.
An important action to achieve the increase in the quality of services
provided to taxpayers and which the National Agency for Tax Administration
has undertaken was to carry out studies on the level of taxpayers' satisfaction
with the assistance services.
Through the measures taken in this direction, the National Agency for Fiscal
Administration registered favorable values, but as the actions are oriented
towards remote services, we can only remember that they are not sustainable,
taking as an example the infrastructure in Romania. At the same time, the degree
of trust in the public administration is low, in this respect special attention must
be paid to the training of civil servants in the field in which they operate.
Regarding the increase of the quality of the services offered to the taxpayers,
which in our opinion has a significant impact on the National Agency for Tax
Administration, respectively on the fiscal predictability and the observance of the
taxpayers' rights, according to the activity reports published by this institution
for the years 2014-2017 semester I, we note the following:
– it is mentioned that a questionnaire was published on the portal of the
National Agency for Fiscal Administration to monitor the degree of taxpayers'
satisfaction with the services provided, but no report was presented that would
highlight the outcome of the responses;
– there are no studies on the level of taxpayers' satisfaction;
– the degree of taxpayers' satisfaction as a result of the meetings organized
by the National Agency for Fiscal Administration is not presented in order to
guide them on their tax rights and obligations;
– no solutions are presented for taxpayers who do not have the necessary
infrastructure to access the questionnaire.
Therefore, starting from the strategic objective of the National Agency for
Fiscal Administration established for the taxpayers' assistance / guidance field,
27 A. Negoiț, Administration Science, E.D.P., Bucharest, 1977, p. 6.
Free counseling of individuals in the field of taxation 291
namely the improvement of the voluntary compliance, we find that the target is
to collect the revenues to the budget and not to ensure that the taxpayer has
access to information, respectively claiming his rights.
Taxpayers' assistance / guidance, tax inspection and enforcement are also
carried out by structures under the responsibility of the president of the National
Agency for Fiscal Administration, or this can not provide sufficient trust to the
taxpayer in the public administration, as evidenced by the large number of files
which are currently pending before the Romanian courts in the matter of
administrative litigation.
At the level of the local tax authority, the organization of the assistance /
guidance activity is carried out through the specialized departments subordinated to
the local public administration authorities.
In accordance with art. 120 para. (1) of the revised Roamanian Constitution,
the local public administration is based on the principles of decentralization, local
autonomy and deconcentration of public services. According to art. 2 par. (1) of the
Local Public Administration Law no. 215/200128, republished, as subsequently
amended and supplemented, the local public administration is organized and
operates on the basis of the principles of decentralization, local autonomy,
deconcentration of public services, the eligibility of local public administration
authorities, legality and consultation of citizens in solving local issues of
particular interest.
Local autonomy - according to art. 3 para. (1) of the Public Administration Law
no. 215/2001, republished, with the subsequent amendments and completions -
represents the right and the effective capacity of the local public administration
authorities to solve and manage, on behalf and in the interest of the local communities
they represent, the public affairs, according to the law.
The exercise of the right of local autonomy rests with the local public
administration authorities, which manage the resources of the administrative-
territorial unit / subdivision, so that the needs and expectations of the citizens of
the local community are fulfilled.
Local taxes and fees are local budget revenues managed by local government
authorities through the specialized department, called local tax bodies. Just as
local taxes and duties are the tax obligations set out for taxpayers, as well as
taxpayers' assistance / guidance is a service that the tax authority is obliged to
offer free of charge.
In trying to identify whether taxpayers' assistance / guidance is also being
processed for local tax authorities, we have noticed that there is no rule to guide
local government authorities in the correct and consistent application of legal
provisions and the performance of the specific tasks.
Thus, following the researches undertaken we find that according to the
provisions of the Order of the Ministry of Regional Development, Public
28 Published in Official Gazette Part I No. 123 of february 20, 2007.
292 FLORIN IONEL TRUŞCĂ
Administration and European Funds no. 317 of February 21, 2017 regarding the
Regulation of organization and functioning, at the level of the Ministry of Regional
Development, Public Administration and European Funds there is the General
Directorate of Public Administration. The General Directorate is a specialized
structure of the Ministry of Regional Development, Public Administration and
European Funds, without legal personality, exercising at central level functions of
elaboration, coordination, monitoring, analysis, synthesis and evaluation for the
following fields of activity:
– strategies and reforms in public administration;
– local tax and budget policies;
– the development of community services of public utilities and industrial parks.
Among the tasks that the General Directorate of Public Administration has,
we note the following:
– initiates, elaborates, analyzes, approves and promotes for approval draft
normative acts for the regulation of the areas of activity managed;
– guides and supports the local public administration authorities and their
specialized apparatus in the correct and unitary application of the legal
provisions and the fulfillment of the attributions assigned to them by law;
– has the role of representation on the specialized fields, according to
competencies;
– formulates proposals on draft normative acts drafted by ministries and
other specialized bodies of the central public administration containing
provisions regarding the local public administration, according to the areas of
competence managed, and participates in the ministerial working groups,
interministerial working groups, working groups, in order to elaborate draft
normative acts aimed at the local public administration authorities, according to
the managed domains;
– contributes to the development and implementation of a system of integrated
monitoring and evaluation of performance in the provision of public services based
on quality standards in their provision by local public administration authorities;
– develops and implements systems for assessing the administrative capacity
of administrative-territorial units and provides support to strengthen their
administrative capacity.
Referring to the tasks listed above, we take as an example one of the
responses made by the Directorate-General for Public Administration through
the Directorate for Tax Policies and Local Budgeting, posted on the personal
website, namely:
"Statement from 10.02.2017 on the calculation of the tax on non-residential buildings
owned by natural persons who filed the tax return after the deadline of 31.05.2016.
1. According to art. 5 point 41 of the Government Decision no. 15 / 2017 on the
organization and functioning of the Ministry of Regional Development, Public
Free counseling of individuals in the field of taxation 293
Administration and European Funds, as subsequently amended and supplemented, it
guides and supports the local public administration authorities and their specialized
apparatus in the correct application and the unitary provisions of the legal provisions and
the fulfillment of their attributions.
The Ministry of Regional Development, Public Administration and European Funds
do not formulate interpretations / explanations of a general nature of administrative acts
that can be invoked before any court or administrative authorities and the responsibility
for issuing an act or making a decision rests solely with the authority who issues the act /
person making the decision. (...)".29
In the first paragraph of the present case, it is emphasized the attribution
according to which the Ministry of Regional Development, Public Administration
and European Funds through the General Directorate of Public Administration
"guides and supports the local public administration authorities and their specialty
apparatus in the correct and unitary application of the legal provisions and the
fulfillment their duties", and from the second paragraph," ...... does not formulate
interpretations / explanations of a general nature of administrative acts that can be
invoked before any court or administrative authorities ... ", it follows that it does not
assume the viewpoints it formulates. In such situations, do the local public
authorities consider that the point of view developed by the Ministry of Regional
Development, Public Administration and European Funds is informative? It is
obvious that such an attitude can not ensure the guidance of the local tax bodies
in the correct and unitary application of the legal provisions and the fulfillment
of their attributions.
Conclusions
We can appreciate that the first purpose of administrative law in Romania is
not achieved in such a way that the result obtained from the administration's
control by law is favorable both in quantitative and qualitative terms.
At the level of the central administration, the taxpayers' assistance/guidance
activity carried out by the central fiscal bodies it is realizing in a centralized /
deconcentrated system, according to the provisions of Order no. 1338/2008 issued
by the President of the National Agency for Fiscal Administration for approving the
procedure for taxpayers' guidance and assistance by tax authorities.
Regarding the local public administration, the taxpayer assistance/guidance
activity is carried out, in a decentralized system, at the level of each
administrative - territorial unit/subdivisions through specialty compartments "at
will", without a procedure – regulated at national level – which to guide the local
tax authorities in the correct and unitary application of the legal provisions and
the fulfillment of the specific tasks of assistance / guidance to taxpayers.
29 http://www.dpfbl.mdrap.ro/spete_fiscale_cladiri.html (accessed on november 13, 2017).
294 FLORIN IONEL TRUŞCĂ
However, irrespective of the solutions found to resolve the situations
described above, the primary objective for central and local tax authorities remains
to collect revenue to the general consolidated budget. Also, it should not be
forgotten that in the financial law legal relationship, the taxpayer is subjectively
passive30, a situation that strengthens the above-mentioned appreciation.
We believe that the alternative that can increase taxpayers' welfare, strengthen
the rule of law, achieve credible, efficient and quality public administration is free
tax counseling through tax prevention actions. Involvement of public authorities
with fiscal preventative activity, in addition to helping taxpayers to track and
understand their tax burden, to be able to determine the influence of their financial
management decisions on taxes and duties, as well as claiming their rights, would
also contribute to increasing voluntary compliance taxes.
REFERENCES:
1. Books:
• Blan Emil, Financial right, Edition 4, C.H. Beck, București, 2007.
• Blan Emil, Administrative institutions, C.H. Beck, București, 2008.
• Blan Emil, Administrative procedure, University Ed., București, 2005.
• Drewry Gavin, „The ombudsman: Parochial Stopgap or Global Panacea ?”
in P. Leyland and T. Woods, Administrative Law Facing the Future: Old
Constraints and New Horizons, Blackstone Press, 1997.
• Grigorie-Nicolae Lcrița, The Dictionary of the Fiscal Code, Economic
Tribune, București, 2010.
• Grigorie-Nicolae Lcrița, The Dictionary of the Fiscal Procedure Code,
Economic Tribune, București, 2010.
• Moroianu-Zltescu Irina, Human rights: an evolving system, Ed. I.R.D.O.,
București, 2008.
• Negoiț Alexandru, Administration Science, E.D.P., București, 1977.
• Ptulea Vasile, Treaties of legal and jurisdictional management, IRDO,
București, 2010.
• Van Raepenbusch Sean, Institutional law of the European Union, Rosetti
International, 2014.
• Vida Ioan, Constitutional Court of Romania: Political Justice or Politics of
Justice ?, Official Gazette R.A., București, 2010.
• Zltescu Victor Dan and Moroianu-Zltescu Irina, Landmarks for a human
rights philosophy, IRDO, București, 2003.
2. Acts:
• The Charter of Fundamental Rights of the European Union proclaimed by
the European Commission, the European Parliament and the Council of the
30 E. Blan, Financial right, edition 4, C.H. Beck, Bucharest, 2007, p. 39.
Free counseling of individuals in the field of taxation 295
European Union at the Nice European Council of December 7, 2000, published in
the Official Journal of the European Union, C series and amended on December
12, 2007, in Strasbourg
• The Constitution of Romania, published in "M. Of, I" No. 233 of november
21, 1991.
• Government Decision no. 1050/2004 for the approval of the Methodological
Norms for the application of the Government Ordinance no. 92/2003 on the Code of
fiscal procedure, published in "M. Of, I" No. 651 of July 20, 2004.
• Government Decision no. 520/2013 regarding the organization and
functioning of the National Agency for Fiscal Administration, published in "M. Of, I"
No. 473 of july 30, 2013.
• Local Public Administration Law no. 215/2001, republished, as amended
and supplemented, published in "M. Of, I" No. 123 of february 20, 2007.
• Law no. 429/2003 for the revision of the Romanian Constitution, published
in "M. Of, I" No. 758 of october 29, 2003.
Law no. 571/2003 on the Fiscal Code, published in "M. Of, I" No. 927 of
december 23 , 2003.
• Law no. 174/2004 for the approval of the Government Ordinance no. 92/2003
on the Code of fiscal procedure, published in "M. Of, I" No. 465 of may 25, 2004.
• Law no. 13/2008 for the ratification of the Treaty of Lisbon amending the
Treaty on European Union and the Treaty establishing the European
Community, signed in Lisbon on 13 December 2007, published in "M. Of, I" No.
107 of february 12 , 2008.
• Law no. 227/2015 on the Fiscal Code, published in "M. Of, I" No. 688 of
september 10, 2015.
• Law no. 207/2015 on the Fiscal Procedure Code, published in "M. Of, I"
No. 547 of july 23, 2015.
• Order of the President of the National Agency for Fiscal Administration no.
1338/2008 for the approval of the Procedure on taxpayers' guidance and
assistance by tax authorities, published in "M. Of, I" No. 706 of october 17, 2008.
• Order of the Minister of Finance no. 137/2004 approving the Code of Ethics
of the civil servant in the tax administration, which carries out its activity in the
area of taxpayers' assistance, published in "M. Of, I" No. 66 of january 27, 2004.
• Government Ordinance no. 92/2003 on the Code of fiscal procedure,
published in "M. Of, I" No. 941 of december 29, 2003.
• Government Ordinance no. 59/2010 amending Law no. 571/2003 on the
Fiscal Code, published in "M. Of, I" No. 442 of june 30, 2010.
• Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Communities, published in OJ C 306 of december 17, 2007.
3. Website:
• http://www.dpfbl.mdrap.ro/spete_fiscale_cladiri.html (accessed on november
13, 2017).