The procedure for contesting the Decision on joint liability
It is known as one of the methods used by the fiscal body (ANAF) for the recovery of debts when a commercial company goes through financial difficulties, not having the necessary means to pay the fiscal obligations when due.
Practically, as a result of an extended interpretation of the provisions of art. 25 para. (2) of the Code of Fiscal Procedure, the fiscal body is directed against the administrators of the companies by issuing the Decision to attract the joint liability. (After the declaration of the state of insolvency of the company – through a Minutes of declaration of the state of insolvency/bankruptcy)
The appeal decision is executory, which means that the fiscal body can immediately proceed with enforcement and strictly target the personal assets of the company’s administrator.
The most well-known reason for the liability of the administrator is the one indicated in art. 25 para. (2) lit. d) from the Fiscal Procedure Code, according to which the administrators who, in bad faith, determined by for example the non-declaration and/or non-payment of tax obligations when due, are jointly and severally liable for the outstanding payment obligations of the debtor declared insolvent.
However, for the administrator to be responsible for the company’s insolvency, the following cumulative conditions must be met:
– fiscal obligations not to be declared on time and/or fiscal obligations not to be paid when due;
– there must be bad faith on the part of the administrator;
– the non-declaration and/or non-payment of tax obligations when due must be the cause of the insolvency of the debtor/company.
In the practice of the courts, it was stated that by not submitting tax declarations, the bad faith of the administrator cannot be deduced, nor the purpose of evading the payment of obligations towards the general consolidated budget of the state. [I.C.C.J. Administrative and Fiscal Litigation Section, Decision no. 1177/2015; Bucharest Court of Appeal, Administrative and Fiscal Litigation Section, Decision no. 1254/2018; Olt Court, Administrative and Fiscal Litigation Section, Decision no. 374/2018].
In principle, non-payment of fiscal obligations when due is not evidence of bad faith on the part of the administrator/associate. [Bucharest Court of Appeal, Second Administrative and Fiscal Litigation Section, Decision no. 1254/2018; Bucharest Court, Administrative and Fiscal Litigation Section, Civil Sentence no. 5595/24.09.2018].
On the other hand, it was held that: “non-payment of tax debts for a long period of time, if the company continued to carry out commercial activities, making payments and establishing tax obligations, without proceeding to their payment, thus being in a state of cessation of payments only to the budgetary creditor – it could be considered as proof of the administrator’s bad faith”. [Timisoara Court of Appeal, Administrative and Fiscal Litigation Section, Decision no. 8617/2017].
Against the decision to attract joint and several liabilities, an administrative appeal can be submitted to the issuing fiscal body within 45 days from the date of communication.
The introduction of the appeal by administrative means does not suspend the execution of the Decision on the joint liability.
However, it is possible to request the suspension of the execution of the fiscal administrative act, pursuant to art. 14 of Law no. 554/2004 of the Administrative Litigation. Under these conditions, the competent court can suspend the execution, if a bond is submitted:
a. of 10%, if this value is up to 10.000 lei;
b. of 1.000 lei plus 5% for what exceeds 10.000 lei;
c. of 5.500 lei plus 1% for what exceeds 100.000 lei;
d. of 14.500 lei plus 0.1% for what exceeds 1.000.000 lei;
e. 1.000 lei, if the object of the appeal is not evaluable in money.
The objection/complaint filed under art. 268 of the Fiscal Procedure Code is an administrative appeal (prior procedure), it is not subject to judicial/extrajudicial stamp duties and must be resolved within 45 days of registration.
The fiscal body can accept the appeal, in whole or in part, or reject it. By decision, the contested administrative act can be annulled, totally or partially, in the situation where, from the existing documents in the file and following the steps taken by the issuing fiscal body, it is not possible to establish the factual situation in the case subject to resolution by referring to the legal grounds invoked by the competent body and the appellant. In this case, the competent fiscal body will conclude a new fiscal administrative act that must strictly take into account the considerations of the decision to resolve the appeal.
The decision to resolve the administrative appeal is communicated to the appellant and can be contested, within 6 months, at the competent administrative court at the domicile of the appellant, natural person/headquarters of the appellant, legal entity: Court – administrative-fiscal section for Decisions involving obligations fiscal up to 3.000.000 lei; The Court of Appeal – the administrative and fiscal litigation section for Decisions involving fiscal obligations greater than 3.000.000 lei.
Author: Atty. Ionut Sfetcu