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C.J.U.E., Hotărârea Curţii, Camera a cincea, din 21 iunie 2012, cauza C-78/11
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Over the time, the Romanian economic environment complied that no interim dividends could be paid during the year. In 2018 the Companies’ law has changed so that quarterly dividends can be distributed. In this article we analyzed the main provisions of the law regarding the quarterly dividends, identifying the challenges faced mainly by large companies intending to pay such dividends and the blurred aspects unanswered yet even though many months have passed since the amendment of the legislation. Not less important, we’ll analyze the tax and accounting treatment of such payment. The article approaches two perspectives: an economic and a juridical one.
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The purpose of the transfer pricing analysis is to enable the comparison between prices/profit margins established in transactions between affiliated entities and prices/profit margins established in comparable transactions between independent/non‑affiliated entities, in order to formulate an opinion regarding the alignment between transfer prices and market prices. Therefore, it is imperative that the comparable transactions used for benchmarking purposes should be transactions that occur between independent (non‑affiliated) entities. Moreover, the regulations in force regarding transfer pricing explicitly mention that in evaluating transfer prices one cannot refer to transactions between companies that are part of a multinational enterprise (MNE), but strictly to transactions carried out between companies amongst which there is no affiliation (independent companies). Based on the interactions we have had in the last year with the transfer pricing tax inspectors, but also during court of law proceedings following tax audits focused on transfer pricing, we have been able to notice their current tendency to carry out a rigorous verification of the criteria of independence (non‑affiliation) of the transactions/companies included in the comparability samples. Based on this rigorous verification many of the comparability samples proposed by the taxpayers in the transfer pricing documentation are often invalidated. Therefore, this article aims to present the importance that correct interpretation, determination and verification of affiliation relationship can have in order to defend the transfer pricing documentation. We would like to mention in this regard that the article is based on experience gained during tax audits and legal proceedings, on the one hand, and the internal work procedures developed over time as a result of our constant interactions with the tax authorities, on the other hand.
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The rules regarding the adjustment of VAT in the case of capital goods (Article 305 of the Tax Code) have been changed as of January 1st 2017, following the EU Pilot 8399/16/TAXU file whereby Romania was notified that it does not transposed correctly the provisions of Article 187 of Directive 2006/112/EC on the common system of VAT (the VAT Directive). The new rules have been implemented without transitional measures, which may lead to problems regarding their neutrality, where the adjustment would be made in the favor of taxable persons.
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This study approaches the issue of ancillary tax obligations, a subject which has been generally given insufficient attention, both in practice and in legal literature, with the purpose of establishing the correct relation and correlation between their imposition and the fulfilment of the requirements for triggering tax liability, especially the requirements pertaining to the existence of culpability and of damages caused to the public budget.
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This article aims to analyze the legislative and jurisprudential evolution of the institution of the fiscal administrative act suspension and, more precisely, the second condition for its application, namely the imminent damage, both in terms of national practice and in relation to the recent evolution of European law.
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”The principles provide an element of flexibility in the application of law; they help to prevail spirit of the law to the letter, its common sense on technology, justice of mere legality by allowing to penetrate beyond positive law to aspirations deeper order our legal”. The need of a legal analysis about the principles of taxation and general principles of tax administration is evident, especially in a state where the Fiscal Code and the Fiscal Procedure Code have been amended frequently and the legislator, the tax bodies, and even the taxpayer experience is still not sufficiently long. In this article we will try to make an analysis of one of the fundamental principles of tax procedures, the right to be heard, part of the right to defense, from the provisions of Chapter II of the New Tax Procedure Code entitled ,,General principles of conduct in the administration of tax claims’, including a view about how these provisions are applied in administrative and judicial practice.
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As previously presented, the concept of secondment of the employee under EU law should not be confused with the same notion under Article 45 Labor Code. The purpose of these provisions is therefore to avoid the administrative complications which would result from the application of the general rule laid down in Article 11 (3) (a) of the said Regulation where the period of employment is of short duration in a Member State other than the State in which the undertaking has its registered office or a place of business or the State in which the self‑employed person normally pursues his activity. Consequently, the Court of Justice of the European Union plays a crucial role in addressing, through the mechanism of preliminary rulings, interpretations of general interest regarding the uniform application of EU law for social contributions and the form A1.
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Summary of judgements on tax matters delivered by the Court of Justice of the European Union in July‑August 2019 .
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Contencios fiscal – Dreptul la apărare – Dreptul de acces la dosarul administrativ – Inspecție fiscală – Cererea contribuabilului de acces la dosarul administrativ – Refuz nejustificat – Obligarea judiciară la asigurarea accesului la dosarul administrativ
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The most controversial changes introduced by the ”greed tax ordinance” are certainly those which introduce new taxes, substantially increase the existing taxes or which impose new capital requirements to certain economic operators. In relation to these regulations, the adoption of this ordinance has led and still leads to reactions of representatives of targeted categories of people who actively militate, in official talks with the government, for the repealing or at least the reduction of the new legislative requirements. The situation is different regarding the changes made in the construction segment, where the new regulations were adopted following the conclusion on 29 November 2018 in Alba Iulia, of the Agreement between the Government of Romania and the Federation of Employers’ Associations of Construction Companies, by which the construction sector was proclaimed as priority field for the realisation of the Government Programme objectives. We have aimed by this article to expose the main changes with impact in the construction sector and the conditions that must be fulfilled for the concerned persons to benefit from the newly introduced facilities. We have also drawn the attention to difficulties in interpretation of texts of law in their current form and we tried to identify concrete situations in which their application would lead to unfair or logically inexplicable consequences.
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In this article, the author refers to the odd case of the revival of tax enforcement, in insolvency procedures opened under Law no. 85/2006. By analysing the relevant constitutional provisions, as well as those of Law. no. 85/2006, Law no. 85/2014 and Government Emergency Ordinance no. 88/2018, the author concludes such tax executions are illegal. Recent case-law available at national level seems to support this conclusion and is expected to develop rapidly.
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Creanță fiscală – Titlu executoriu european – Contribuții sociale obligatorii – Contestație executare – Suspendare executare – Anularea actelor de executare
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Hotărârea Curții de Justiție a Uniunii Europene din data de 28 februarie 2019, pronunțată în cauza C-278/18, având ca obiect o cerere de decizie preliminară formulată în temeiul art. 267 TFUE de Supremo Tribunal Administrativo (Curtea Administrativă Supremă, Portugalia), în procedura Manuel Jorge Sequeira Mesquita c. Fazenda Pública.
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This article represents a highlighted analysis of the essential conditions imposed by art. 277 parag. 1 letter a) of Fiscal Procedure Code to administratively suspend the dispute settlement procedure disposed by tax authorities. It also contains references about relevant case-law regarding the abusive fiscal practice used in implementing art. 277 paragraph 1 letter a) of Fiscal Procedure Code.
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Procedură fiscală – Obligații fiscale suplimentare – Sesizare penală – Procedură penală – Clasare – Identitatea stării de fapt – Obligativitatea soluției – Principiul ne bis in idem
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The Case-Law of the European Court of Justice (November-December 2018)
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