The Infractions of Tax Evasion

AuthorMihai Adrian Hotca
Pages217-224

Mihai Adrian Hotca. Associate Professor, Ph.D., Dean of the Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail: mihaihotca@gmail.com).

Page 217

Introduction

The existence of the state depends, among others, on the participation of the taxpayers, natural persons and legal entities, to the setting of the public funds. The functioning of the etatic or administrative institutions implies the carrying out of some very high expenses that depend in their turn on the existence of some previous public revenues. The prevention and fight of the tax evasion represents a constant concern of the legislator. One of the latest laws in this matter is Law no. 241/2005 regarding the prevention and fight of the tax evasion.

The purpose of Law no. 241/2005, as well as that of any law that contains penal norms of accusation, is to defend the society against some antisocial deeds. Through the deeds forbidden by the norms of this law, it damages the social values regarding the taxation and the social relations generated by this one. Corresponding to the gravity of the deeds forbidden through the special penal norms contained by Law no. 241/2005, the sanctions of penal law stipulated by this one are the most severe legal sanctions for illicit deeds related to taxation existing in the Romanian legal system.

In the field of taxation, the prevention and fight of the deeds of tax evasion or of those related to these ones take place through various types of instruments, such as those of economic, politic, legal etc. nature etc. The legal measures can be from the domain of commercial law, penal law etc.

The prevention and fight of the tax evasion are carried out also through other instruments than those stipulated by Law no. 241/2005; one of these is the fiscal certificate regulated by Government Ordinance no. 75/2001. The prevention and fight of the tax evasion is also carried out through other normative documents. Among these, it is also the Fiscal code, Law no. 82/1991, Customs code etc.

Page 218

Next we shall analyze the content of art. 9 of Law no. 241/2005 that stipulates the infractions of tax evasion and art. 10 that regulates certain causes of unpunishment and reduction of the punishments.

Literature Review

The doctrine is quite scarce regarding the analysis of the infractions of tax evasion stipulated by Law no. 241/2005. Amount the representative works for this subject, we mention the works of M.Ş. Minea, C.F. Costaş, D.M. Ionescu, Law of the tax evasion. Comments and explanations, Bucharest, 2006.

Beside the present paper, the specialty literature records also other works that I have mentioned in the bibliographic list in the end.

1. Content of art 9 of Law no. 241/2005

According to art. 9 paragraph (1) of Law no. 241/2005, the following deeds committed for the purpose of eluding the carrying out of the tax obligations are infractions of tax evasion and are punished with imprisonment from 2 years to 8 years and the forbiddance of some rights:

a). hiding of the asset or of the imposable or taxable source;

b). total or partial omission of marking the afferent trading operations or the obtained incomes in the accounting documents or in other legal documents;

c). marking of the expenses that are not based on real operations in the accounting documents or in other legal documents and marking of other fictive operations;

d). alteration, destruction or hiding of the accounting documents, memories of the fiscal electronic taxation devices or cash-registers or of other data storage devices;

e). drawing up of double accounting registers by using documents or other means of data storage;

f). eluding of performing the financial, tax and customs verifications by not declaring, fictively or inexactly declaring with regard to the main or secondary offices of the checked persons;

g). substitution, degradation or giving away of the assets put under distraint according to the provisions of the Tax procedure code and of the Penal procedure code by the debtor or other third parties.

If, through the deeds stipulated by paragraph (1), it was caused a prejudice higher than EUR 100.000 in the equivalent of the national currency, the minimum limit of the punishment stipulated by Law and its maximum limit is increased with 2 years. If, through the deeds stipulated by paragraph (1), it was caused a prejudice higher than EUR 500.000 in the equivalent of the national currency, the minimum limit of the punishment stipulated by Law and its maximum limit is increased with 3 years.

2. Analysis of the infractions stipulated by art 9
2.1. Hiding of the asset or of the imposable or taxable source

The hiding is an activity through which the active uncircumstanced subject places in safety the asset or the imposable or taxable source, depending on the case. The imposable and taxable...

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