Action for annulment of the decision for imposition of precautionary measures. Exception to the rule of the taxpayer obedience

DREPTUL CONTENCIOSULUI ADMINISTRATIV ŞI FISCAL

Abstract

The application of Article 9 of the Fiscal Procedure Code meets a series of limitations, either expressly determined from the legislative perspective (the case of the unannounced tax inspection), or determined by the specific nature of the procedure, a situation within which the procedure of issuing of the decision for imposition of precautionary measures falls. Besides the fact that such a procedure precedes, in most cases, enforcement measures (according to Article 213 para. (2) the final sentence of the Fiscal Procedure Code, in which case the provisions of Article 9 para. (2) letter d of the Fiscal Procedure Code may be taken into account), it is also acknowledged that the ordered measures intend to counter the risk of failure to satisfy the tax debt, given the debtor’s behaviour. However, from this perspective, the information, respectively the prior obedience of the taxpayer could deprive of its efficiency the measure which based just on a state of danger consisting in the embezzlement/concealment/waste of the assets by the taxpayer. Consequently, the Court considered that Article 9 of the Fiscal Procedure Code shall not be applicable in the procedure laid down in Article 213 of the same normative act. The basis of the decision on imposition of the precautionary measures - measures imposed in exceptional situations, as expressly provided for under Article 213 para. (2) of the Tax Procedure Code -, shall consist in the actual and concrete occurrence of the danger that the debtor should avoid prosecution or conceal or waste its assets, supported by reliable data and by the evidence produced. In this case, the tax body does not punctually emphasize which are the issues deemed as underpinning the conclusion of the occurrence of the danger that the plaintiff avoid the payment obligation, conceal or waste its assets. In relation to the normative provisions previously mentioned, the court considered that the limitation of the company activity did not justify itself the imposition of the precautionary measures, and the limitation of the activity could not be treated as fraudulent behaviour of the appellant-respondent which should have been included in the exceptional circumstances underpinning the imposition of the precautionary measures in virtue of Article 213 of the Fiscal Procedure Code.