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Bucharest Court of Appeal Obliges ANAF to Resume Resolution of Fiscal Challenge after Finding that Prosecution Lasts Unjustifiably Long

Publication: ZRVP

This decision is a novelty by its particularity as compared to the solutions obliging the fiscal authority to resolve fiscal challenge.

 

By the claim object of case file no. 3197/2/2018, the claimant requested the court to ascertain the unjustified refusal of the National Agency for Fiscal Administration to resume the procedure of resolution of the tax challenge and, respectively, to order that the defendant be obliged to resume the challenge resolution procedure, for the ruling of a decision on the merits of the challenge.

By the Civil Judgment no. 2370/October 08, 2019, Bucharest Court of Appeal rejected the exception of the authority of res judicata invoked by ANAF, partially allowed the claim filed by the claimant and, consequently, under art. 214, paragraph 3 of the Fiscal Procedure Code, corroborated with art. 413, paragraph 3 of the Civil Procedure Code, obliged ANAF to resume the procedure of resolution of the prior challenge.

This decision is a novelty by its particularity as compared to the solutions obliging the fiscal authority to resolve fiscal challenge. Thus, the solution was obtained after the claim challenging the stay had been finally rejected by courts of law. The new administrative and fiscal dispute no longer considered, therefore, the stay decision of 2014 (in whose regard there was the authority of res judicata). In it a different element was analyzed as to the legality of the stay, and namely (non-)legality of maintaining of this measure as more than a year had passed from the last procedural act prepared in the criminal case file, from the perspective of  art. 413, paragraph 3 of the Civil Procedure Code, which allows to reconsider the measure of stay of the resolution of fiscal challenge.

“The solution is extremely important and with practical impact given the large number of fiscal challenges stayed until the resolution of the criminal case files formed as a consequence of the notification of fiscal inspectors. Even if lately the courts of law have started censoring this approach, numerous such cases continue to be blocked  for years in administrative procedure, and they cannot be referred to the legality control of the courts of law”, declared attorney at law Ovidiu Șerban, Managing Associate of Zamfirescu Racoți Vasile & Partners (ZRVP) Attorneys at Law, which represented the claimant in this trial.

“Blocking of access to the contentious court by the mere existence of a criminal case file at the prosecution stage, which does not advance, is one of the biggest problems in fiscal matters. The solution is important to us and to our client, but its symbolic significance is equally notable: stay of fiscal challenge until the resolution of a criminal case file that does not progress is not a fatality; so, here we are, positive law, rationally interpreted and applied, does offer remedies and overcome of an unacceptable blockage” added Dr. Cosmin Vasile, Managing Partner ZRVP.

The team of attorney at law of Zamfirescu Racoți Vasile & Partners was formed of Cosmin Vasile, Managing Partner, and Ovidiu Șerban, Managing Associate.

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