Professor Marius Pantea PhD, Attorney-at-Law
Episode 1 “A lost letter to the National Fiscal Administration Agency”
Many, or too many we could say, are the situations depicted by Caragiale that we can see for ourselves are so current today. Unfortunately or fortunately, the gambling industry nowadays often oscillates between tragic and grotesque, between comic and gloomy, depicting a real spectacle of the world, where we behave as if, without realizing it, in all sorts of situations, we were characters in works of literature, some realistic, others psychological or fabulous. Even if in those “times” there was no COVID crisis, people and authorities seemed to react in a similar way, and the feeling is that we live in a realistic short story where gambling operators, heroes of our story, are at the border between comic and tragic.
I encountered such a situation the other day when an economic operator, an important person, you do not say the name, was about to “have it coming” to it, because an “employee” of the tax office did not want to understand that she had to do what the law said she could and must do. Specifically, let me tell you all about the happening.
According to the legal provisions (GEO 77/2009 on the organization and operation of gambling, as subsequently amended and supplemented), the gambling operator has the obligation to set up a guarantee fund to cover the risk of default to the general consolidated budget, according to the provisions of article 29 of the referenced law, which provides:
“(1) In order to cover the risk of default on the general consolidated budget, gambling organizers or economic operators authorized to exercise technical control, monitoring and supervision of online betting organized via internet communication systems, fixed or mobile telephony systems, bingo games organized via internet communication systems, fixed or mobile telephony systems, online gambling organized via internet communication systems, fixed or mobile telephony systems are required to set up a guarantee fund, for each electronic slot machine, casino gambling table or for each location, as the case may be, until the date of submission of documentation for the granting of a gambling license, in favor of the competent territorial tax office, by:
- a) placing funds in an escrow fund with the unit of the State Treasury serving the fiscal office;
- b) bank letter(s) of guarantee issued by a banking company. In its content, the issuer will expressly state that it irrevocably and unconditionally undertakes, expressly waiving the benefit of discussion, opposition and division, to pay the outstanding tax obligations to the account indicated by the territorial tax authority responsible for the tax administration of the taxpayer.
(2) If, within the period of validity of the gambling license, the organizer in question requests the granting of other gambling authorizations or the supplementation of the number of gambling devices listed on the existing license, as the case may be, the organizer shall replenish, before submitting the application, the existing guarantee fund.
(3) The organizers of betting activities are obliged to replenish the guarantee fund before submitting a notification of expansion to a new location.
(4) Organizers shall maintain or replenish the guarantee fund set up at the level
corresponding to the number of electronic gambling machines, casino gambling tables or locations, as the case may be, for which they hold or apply for gambling licenses.
(5) Failure to submit the documents certifying the set up or supplementation of the existing guarantee fund, according to paragraphs (1) and (2), shall result in the application being dismissed or, for the organizers mentioned in paragraph (3), in the revocation of the license granted to the organizer in question.
(6) If the territorial tax authorities use the guarantee set up under paragraphs (1) – (3), they shall notify the organizers on this fact, and such organizers shall replenish the guarantee before the first deadline for the payment of debts to the consolidated general budget.
(7) If the validity of the bank letter of guarantee expires during the validity period of the gambling license or gambling authorization(s), as the case may be, the organizer in question shall submit a new letter of guarantee or other document issued by the bank attesting to its extension, at least 5 business days prior to the expiry of the previous bank letter of guarantee.
(8) The level of guarantees to cover the risk of default is …
(9) If an organizer of casino gambling activities operates electronic gambling devices inside such casino, such organizer shall set up the guarantee fund by adding all obligations provided in paragraph (8) letters a) and b).
(10) For failure to meet the requirements provided in paragraphs (6) or (7), the Supervisory Board may order the revocation of the gambling license issued in favor of the organizer in question”.
GAMBLING
All gambling operators, and not only, set up these guarantees and take special care to maintain them at the level required by law, in order to avoid the risk of having their license revoked by the ONJN Supervisory Board. It is well known that, when the Board approves the issuance of operating authorizations for various types of gambling, operators have to pay for them in advance, and an authorization’s validity can only start on the first day of month following which the documentation filed by the economic operator was reviewed and cleared and payment was made. Specifically, the lawmaker has provided two possibilities to start operating gambling activities. Thus, if the Supervisory Board granted an authorization in the current month, the gambling operator is entitled to start its activity on the first day of the following month, provided the operator pays the authorization fee before the last day of the current month. Or the operator may choose to pay on or before the 25th day of the month following the month in which the right was granted, and its activity may commence on the first day of the month following the month of payment. For example, if the Board met in January, the operator is entitled to start on the 1st of February, provided the fee is paid before the end of January, or may start on the 1st of March, if the fee is paid on or before 25 February.
Coming back to our story, let me tell you all about it. Our operator gets the approval of the Board and decides to pay the fee and start its activity on the first day of the following month. Said and done, he goes online and pays via internet-banking on the last day of the month. To his big surprise, the bank fails to operate the payment on the last day of the month because… they wanted so (and providing many so-called reasons such as… “payment was made after 4 p.m. and the bank’s working hours had ended” or “the internet banking will stop operating payments after a certain time of the day” and so on) and therefore makes the payment on the first day of the following month. Knowing that he made the payment according to the rules, our operator gets to work. But when requesting a statement of account to submit it to the ONJN, the operator finds a discrepancy between the date he made the payment and the date the honorable bank decided to make that payment. Our poor operator goes to the honored bank to explain everything, but gets nothing in return, or rather an answer like “watch it, we may close down your accounts…”. What to do?
Our operator, being of a rather careful nature, set up larger guarantees than the law provided with the treasury, as he wanted to increase the number of gambling devices he wanted to operate anyway, and, since working with the treasury can prove to be such an ordeal, decided to set up the maximum guarantee, to avoid future bureaucracy and the like. Having paid those additional amounts, the operator requests the National Fiscal Administration Agency, according to the provisions of the Tax Procedure Code, to transfer the required amount from the treasury account to the account of the state budget, on the date the guarantee was set up. This is common among national gambling operators, in particular since there are specific deadlines provided in the gambling law.
The legal provisions that allow this operation are:
- article 212 paragraph (1) of the Tax Procedure Code, which provides that: “The competent tax authority shall settle any debts from the guarantees submitted, if the purpose for which they were set up has not been achieved” and
- article 163 paragraph (12) of the Tax Procedure Code, according to which the fiscal body is entitled to issue “orders to make payment, in case of settlement of tax obligations by enforcement of the guarantee set up…., the date of settlement being the date the guarantee has been set up”.
But wait and see… going to the Tax Authority, the operator comes across a young lady who unequivocally states that “this is not possible”, after first having requested a mountain of papers from the operator, made requests and complaints to some, others, and again others, or even requested a paper attesting it was possible and, after receiving the paper, concluded: „oh, but this is not valid for our area”, like the Tax Procedure Code of Romania has regional application.
In conclusion, our gambling operator is played like a ping pong between banks and various clerks (in this case the tax authority clerks) for things that are not under its control, and the interpretation of the laws governing its activity are so diverse that one can no longer be sure what to believe, how to react and where to find justice.
TO BE CONTINUED
