4. Nov 2017
3. Jan 2018
2. Feb 2018
1. Mai 2018
May 7, 2018

The illegality of the refusal to cancel the accessories – in the context of GEO no. 44/2015

Although GEO 44/2015 should have been exceptional and short-lived, as its giving arguments show, almost three years after its entry into force, this ordinance continues to produce echoes, especially due to the way in which the tax authorities have understood to implement it.

R.C., a Romanian limited liability company, has submitted with the tax authority a notice of its intention to benefit from the provisions of GEO 44/2015 and as a result it has been issued the decision to postpone payment of the delay payment interest and delay payment interest penalty. Consecutively, on March 29, 2016, R.C. filed an application requesting the tax authority to cancel the delay payment penalty, as well as a 54.3% delay payment interest rate.

Approximately one year after filing the application, the tax authorities communicate to RC the decision to reject the request, due to failure to file tax returns according to the tax vector until the date of filing the cancellation request.

RC challenged this decision, giving four main arguments: (1) the illegality of the decision by failing to justify it; (2) breach of the tax payer ‘s defence right, in relation to the issue of the decision without the taxpayer being heard; (3) the claim was resolved with the violation of the 5-day mandatory deadline set by GEO 44/2015 and in any case beyond the deadline set by GEO 44/2015 for the submission of applications for the cancellation of accessories (30.06.2016); (4) failure to comply with the principle of proportionality in relation to the refusal to issue the decision to cancel the delay payment interest and penalty, even though the substantive conditions to grant the claim were met.

The appeal against the tax decision was rejected as groundless, for which reason RC filled an annulment action with the Cluj County Court to oblige the tax authority to issue a decision to cancel the accessories.

The claim was sustained and the Court cancelled the disputed tax administrative acts and obliged the defendant to issue the decision to cancel the accessories. In the reasoning of the court, it was held that the decision rejecting the request for annulment of the accessories was inadequately explained. Also, the Court stated that the grounds for refusal where purely formal ones and that the decision was issued without the taxpayer's prior hearing. As such, the decision-making deadline was flagrantly breached and the refusal of the tax authority to cancel the accessories breached the principle of proportionality. Finally, the Court argued that there was no legitimate interest in pursuing the rejection of the application.
February 21, 2018

Refusal of the right to deduct VAT in the event of improper conduct on the part of the issuer of the invoice relating to the goods or services in respect of which the exercise of that right is sought — Burden of proof

Brasov Court of appeal, by sustaining the decision ruled by Brasov County Court, has repealed the individual tax ruling imposed to DW SRL. The grounds of this decision regarded the lack of evidence provided by the taxing authority to sustain the fictive character of the transactions concluded by the issuer of the invoice.

The domestic courts as such enforced the CJEU jurisprudence, which states that the tax authority cannot refuse the right to deduct VAT on the ground that the contractual partners of the taxable person did not fulfill their declarative fiscal obligations. The tax authorities bear the burden of proof that the tax personal had knowledge and was involved in a tax evasion scheme, in order to refuse the right to deduct VAT.

January 29, 2018

Surpassing the competency of the ROMANIAN COURT OF ACCOUNTS

SCA Lapusan & Partners assisted and represented the local administration of Tarlisua town, Bistrita-Nasaud county, in front of the Cluj Court of Appeal, which stated that the Romanian Court of Accounts exceeded it’s competency, imposing to the local administration to contract with another economic operator, in order to retrieve the price difference between the two offers, of over 2 millions RON value.

More information about the case can be accessed here:
January 18, 2018

The obligation to pay moral indemnity for posting a denigrating message on the personal Facebook page

The local court of Cluj-Napoca, obligated the son of a well known businessman from Cluj-Napoca to pay moral indemnity to a journalist, for posting a denigrating message on the personal Facebook page, referring to the last-mentioned person. Supplementary, for violating the right of image, the defendant was obligated to publish the court decision in a local and in a national newspaper. The judicial assistance was provided by an attorney team consisting of Mihai Razvan Lapusan and Andrada Persu.

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November 22, 2017

An aleatory condition of qualifying a building as being „green”

The local autorities of Cluj-Napoca were imposed to definitely apply the reduced tax percentageof 0.25% for the “green buildings”, tax facility that has been offered by themselves. Thus, the excess of power, revealed by a poor legislation, which permitted the conspicuous discriminatory application of the special tax percentage of 0.25%, instead of the standard tax percentage of 1%, was sanctioned afterwards some litigations instrumented by an attorney team, led by Gabriela Bucatariu.

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