Following the entry into force of the Emergency Ordinance no. 130/2021 on some fiscal-budgetary measures, extension of deadlines, as well as for the modification and completion of some normative acts, Law no. 241/2005 on preventing and combating tax evasion has been amended and supplemented by new acts of tax evasion, to be sanctioned, as we will see below, starting with March 1, 2022.
Thus, the latest amendments to Law no. 241/2005, contained in art. 61 of the Law, shows that represent criminal offenses and are punishable by imprisonment from 1 year to 5 years or by a fine the withholding and non-payment, collection and non-payment, within a maximum of 60 days from the due date provided by law, of the taxes and/or contributions provided in the annex to this law. This provision shall enter into force on 1 March 2022.
According to the Annex, constitute criminal offences within the meaning of the provisions of art. 61 of the Law, the withholding and non-payment, collection and non-payment, within 60 days from the due date provided by law, of the following taxes and/or contributions:
|1.||Tax on dividends paid by a Romanian legal entity to a Romanian legal entity|
|2.||Tax for income from independent activities based on sports contracts|
|3.||Income tax on intellectual property rights|
|4.||Income tax on salaries and assimilated to salaries|
|5.||Lease rental income tax|
|6.||Income tax in the form of interest|
|7.||Tax on taxable income obtained from the liquidation of a legal entity or from the reduction of the share capital, according to the law|
|8.||Income tax in the form of dividends|
|9.||Pension income tax|
|10.||Income tax on prizes and gambling|
|11.||Income tax from other sources|
|12.||The income tax obtained by a natural person from an association with a legal entity, taxpayer according to title II of Law no. 227/2015, with subsequent amendments and completions|
|13.||Income tax obtained by a natural person or entity – association without legal personality from an association with a legal person, taxpayer according to Law no. 170/2016 on the specific tax, with subsequent amendments and completions|
|14.||The income tax obtained by a natural person from an association with a legal entity, taxpayer according to title III of Law no. 227/2015, with subsequent amendments and completions|
|15.||Social security contribution|
|16.||Social health insurance contribution|
|17.||Withholding tax on income obtained from Romania by non-residents|
|18.||Tax due on income from the transfer of real estate from personal property|
|19.||Contribution to the Environment Fund|
Regarding the amount of the sanctions provided by law for committing the above acts, in the content of Chapter III (Causes of reduction of penalties, prohibitions and revocations), at art. 10 of the Law, causes of reduction of penalties are provided as follows:
- In the event of any of the above criminal offenses, if the damage caused during the prosecution or during the trial is fully covered, and its value does not exceed 100.000 euros, in the equivalent of the national currency, a fine may be applied. If the damage caused and recovered under the same conditions is up to 50.000 euros, in the equivalent of the national currency, a fine shall apply. (art. 10 paragraph (1) of the Law)
The analysis of this provision shows that the application of the fine is optional for the court if the amount of the damage caused and fully covered is more than EUR 50.000 in national currency equivalent, but not compulsory, as in the case of full coverage of the damage up to 50,000 Euros.
- If the damage does not exceed the amount of EUR 100,000, in the equivalent of the national currency, and during criminal proceedings or during trial pending a final judgment, the damage, increased by 20% of the calculation basis, to which interest and penalties are added, it is fully covered, the deed is not punished, and the provisions of art. 16 para. (1) lit. h) of Law no. 135/2010 on the Code of Criminal Procedure, as subsequently amended and supplemented shall be applied. (art. 10 paragraph (11) of the Law)
According to art. 16 para. (1) lit. h) of the Code of Criminal Procedure: “The criminal action may not be initiated, and when it has been initiated it may no longer be exercised if: there is a cause of impunity provided by law.”, which shows that in this case, there is no cause for reduction of the sentence (as provided in the marginal title of the chapter), but an exoneration from liability, which means that the name of the chapter is inappropriate from this point of view.
- These provisions shall not apply if the perpetrator has committed another offense under this Law within 5 years from the commission of the act for which he benefited from the previous provisions. (art. 10 paragraph (2) of the Law)
In accordance with art. 10 paragraph (12) of the Law, from the reduction of the punishment according to the previous provisions (art. 10 paragraph (1) and (11)) will also benefit the defendants who did not contribute to cover the damage.
From the analysis of the causes of reduction of the punishment for the offenses provided by art. 61 of the Law, it results that they will not be considered incidents if the value of the damage produced exceeds the value of 100,000 euros, in the equivalent of the national currency.
Also, according to art. 11 of the Law “If an offense under this law has been committed, precautionary measures shall be taken.”
With regard to the tax on income from prizes and games of chance, we remind you that it is calculated and withheld at source by the organizer of games of chance, to be paid to the state budget, according to art. 110 (6) of the Fiscal Code, until the 25th of the month following the month in which he was retained.