Authors: Cristina Cristea, Senior Manager, Income tax and social contributions, EY Romania and Călin Stan, Lawyer, Senior Managing Associate, Băncilă, Diaconu and Asociații SPRL

In recent months, more and more taxpayers have been the subject of misappropriated foreclosures. The seizures in question were not established according to the provisions of the Fiscal Procedure Code or as a result of the registration of some outstanding fiscal obligations, but for other reasons, which could be related to breaches in the ANAF infrastructure. What is it about and what to do?

If we look at the honest taxpayer, the subject is far from frustrating. From the point of view of the tax consultant, the taxpayer's business partner and his relationship with the tax inspectors, the problem is even more delicate because what is revealed is not, as we would be tempted to believe, the bad will of the tax authority, as rather syncope in the organization and way of working of ANAF, of which, on the other hand, the taxpayers cannot be considered guilty.

Unfortunately, we are seeing more and more cases where people face misappropriated bank accounts - with an emphasis on accounts, because we are not just talking about one, but all the bank accounts that the taxpayers in question have opened at Romanian banks. A further seriousness is added by the fact that the unavailability of the amounts does not take into account the correctness of the taxation and, in addition, affects both the amounts already existing in the account and any future amounts, in principle, within the limits of tax obligations erroneously established by ANAF. in charge of the taxpayer.

Some of the cases encountered in practice, regarding the erroneous seizure of bank accounts (we do not include the cases in which the taxpayer actually owes the established tax obligations and the subject of the seizures):

- Unprocessed initial statements on time. These can lead to a different order to extinguish the tax obligations or even to the non-processing of the rectifying declarations that aimed precisely at diminishing the tax obligations of the taxpayer.

- Tax decisions issued as a result of income tax returns through annual returns, which were not, however, communicated by ANAF to the taxpayer. There is also the case when they were communicated through advertising (in which case they are rarely identified by the taxpayer), due to the fact that the communication could not be carried out by other means (mail, electronic means). For the latter case, ANAF must be able to prove both that the tax decisions could not be communicated by other means and that the communication took place through advertising.

- Non-granting or non-processing of bonuses according to the law, regarding the incomes obtained and declared through the Single Declarations or, simply, system errors invoked by ANAF.

In all the cases mentioned above, the taxpayer will be harmed, as he will face unpaid tax obligations, which often leads to the seizure of bank accounts.

However, it seems that the reasons for these errors are also varied, mainly due to the lack of human resources, which makes it impossible to process the tax returns submitted by the taxpayer on time. At the moment, for example, we are facing a wave of tax decisions issued for 2017. Another reason may be the pandemic period that forced even tax inspectors to work from home, without providing them with the IT infrastructure to allows them to process information. A third possible cause is related to the implementation of electronic registration of tax returns (eg D224 - Declaration on income in the form of salaries and assimilated to salaries abroad obtained by individuals working in Romania), which are not found in the file tax return of the taxpayer than through the manual intervention of the tax inspector (as opposed to D112 - Declaration on obligations to pay social security contributions, income tax and nominal records of insured persons, where the information is taken over using the computer system).

As we can see, the causes can be multiple, but to quote the statement of a taxpayer: “ANAF has the responsibility to provide me with an answer and to resolve my fiscal situation. The IT system is part of the structure of ANAF and it is not my problem that there are difficulties at this level, that human resources are insufficient or that the telecommuting regime does not allow them to process information. I have always paid my tax obligations on time. Why was I not informed before the bank account was seized? ”

Regarding the information prior to the seizure of the bank account, we encountered cases in which the summons, the writ of execution and the information regarding the seizure of the account were communicated to the taxpayer at the same time. For what reason? Or was it communicated gradually but this information did not reach the taxpayer? It is difficult to say, especially now that many taxpayers have accounts open on the Virtual Private Space, the online platform of ANAF, and there are no press releases.

And the story goes to the next level, because, in the happy case that the error is quickly resolved at the level of ANAF, follows the procedure of lifting the seizure at the level of banks where the seizure of accounts was carried out, which depends on a case to another: either the erroneously established tax obligation has already been extinguished as a result of the bank paying the amounts not made available, or the taxpayer has chosen to pay the amount separately, in order to unblock the account. In the latter case, although the communication of the seizure should be made directly by the tax authorities to the bank, there are often delays in this circuit.

Moreover, if the payment of the seized amount is chosen and it is subsequently found that it was not due, it is frequently blocked in a treasury account assigned to the seizures, the taxpayer having to request its transfer from the seizure account to the one in which the tax liability could be extinguished. future tax obligations. It is rare for erroneously established amounts to be reimbursed ex officio. In most cases, seizure is not a day-to-day process and involves getting to the bank and / or tax authorities.

Instead of concluding, given the above and the context in which people no longer "keep their money on the mattress", foreclosure could be a big problem. We still hope that steps will be taken to align the internal systems of the tax authorities, to ease the work of tax inspectors and eliminate from the unpleasant situations generated taxpayers who certainly want to be in possession of their money, especially for the holidays.

In the context in which the ANAF reform is being discussed and its transformation into a trustworthy institution for taxpayers, it might be a good idea to implement a foreclosure project as a holiday gift. It is said that "time costs money", but we all know that "haste spoils things".