Challenging an ANAF Tax Assessment as a Foreign Owner of a Romanian Company

If you are a non-resident shareholder or director of a Romanian company, receiving a tax assessment from the Romanian tax authority (ANAF) can be both distant and urgent at the same time. The document is issued in Romania, often in Romanian, but it can trigger bank freezes, enforcement of assets and reputational issues across your group.

This article explains, in practical terms, how ANAF tax assessments work, how they are communicated (including to non-residents), how to challenge them administratively and in court, and what this means for foreign shareholders and cross-border structures. It is based primarily on the Romanian Fiscal Procedure Code (Legea nr. 207/2015)(ANAF Static), the Administrative Litigation Law (Legea nr. 554/2004)(Portal Legislativ), official ANAF and Ministry of Finance guidance on tax contestations(Ministerul Finanțelor) and recent court practice and doctrinal commentary on tax disputes and joint liability.(CECCAR Business Review)

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Understanding the ANAF Assessment

1. What is an ANAF “tax assessment”?

Romanian tax law uses the concept of “act administrativ fiscal” (administrative tax act) to describe decisions by which ANAF establishes, amends or enforces tax liabilities. The Fiscal Procedure Code defines the framework for these acts and their effects on taxpayers.(ANAF Static)

In practice, non-resident owners most frequently encounter:

• Tax assessment decision (decizie de impunere) – the main decision establishing additional tax liabilities (corporate income tax, VAT, withholding tax, etc.), often following a tax audit.
• Decision regarding ancillary obligations – establishing interest and late-payment penalties related to the principal tax debt.
• Decision on joint and several liability (decizie de atragere a răspunderii solidare) – making directors, shareholders or other parties personally and jointly liable for the company’s tax debts under Article 25 of the Fiscal Procedure Code.(Wolters Kluwer)
• Decisions related to enforcement – such as enforcement titles, summonses, seizure/garnishment decisions, which implement tax collection under the enforcement chapter of the Code.(Legislatie)

All these instruments are enforceable titles under Romanian law and may also be used, once final, for cross-border enforcement within the EU under Directive 2010/24/EU on mutual assistance for recovery of tax claims.(EUR-Lex)

2. When a “tax assessment” is not just one document

For large audits, ANAF typically issues multiple acts, including:

• A tax inspection report (raport de inspecție fiscală) – not itself enforceable, but explaining ANAF’s factual and legal reasoning.
• One or more tax assessment decisions for different taxes or periods.
• Separate decisions for interest/penalties or for joint liability.

From a litigation perspective, each of these is usually an individual act that can (and often should) be challenged explicitly in the administrative contestation.(Fiscalitatea)

3. How ANAF communicates decisions (including abroad)

The mode and date of communication are critical: almost all deadlines – for contestation and court action – run from the date the act is legally communicated.

The Fiscal Procedure Code (Articles on communication and fiscal domicile) provides that ANAF communicates tax decisions mainly as follows:(Wolters Kluwer)

• By post – registered mail with acknowledgement of receipt, sent to the taxpayer’s fiscal domicile (domiciliu fiscal). For Romanian companies, this is usually the registered office in the Trade Register, unless another fiscal domicile is registered.
• By hand delivery – at ANAF’s office or at the taxpayer’s fiscal domicile; the recipient signs for receipt.
• By electronic means – via the Spațiul Privat Virtual (SPV) electronic portal. As a rule, an act made available in SPV is deemed communicated on the date it is uploaded to the taxpayer’s electronic account.(ANAF Static)
• By publication / public announcement – as an exceptional mechanism if other methods fail.

For non-resident taxpayers without a Romanian fiscal domicile, the Code designates a competent tax authority based on where the taxable event is found and allows ANAF to communicate acts abroad.(ANAF Static) In practice, when a Romanian company is involved, communication usually goes to:

• the Romanian company (at its registered office / SPV account), and
• where appointed, a fiscal representative or authorised representative in Romania.

For a foreign shareholder or director, this can mean that the clock starts running even before they personally see the documents, if the company has already been served in Romania.

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Administrative Challenge Procedure

Before going to court, Romanian tax law requires a mandatory administrative challenge called “contestație”. This is a special pre-litigation procedure regulated by Title VIII of the Fiscal Procedure Code (Articles 268–281).(Fiscalitatea)

Failure to follow this administrative path normally makes a subsequent court action inadmissible.

Filing a tax contestation (contestație) within deadlines

1. Who can file and against what?

Under Article 268 Fiscal Procedure Code, any taxpayer may contest:(Fiscalitatea)

• Tax assessment decisions (titluri de creanță),
• Other administrative tax acts (e.g. joint liability decisions, certain enforcement-related administrative acts), and
• In some cases, the failure to issue an act.

The contestation must identify clearly which act(s) are challenged and, where amounts are involved, the exact sums disputed for each type of tax and accessory obligation. If the taxpayer fails to specify the disputed amount, the law presumes that the entire act is contested.(Contabilul Manager)

2. Deadline – 45 days (with a narrow exception)

Article 270 Fiscal Procedure Code and ANAF/Ministry of Finance guidance state that:(Contabilul Manager)

• The contestation must be filed within 45 days from the date of communication of the administrative tax act, under penalty of forfeiture (decădere).
• The contestation is filed with the issuing tax authority (organul fiscal emitent).
• If the act lacks certain mandatory elements (e.g. legal basis, calculation), the law allows a longer term of 3 months from communication.
• The contestation is not subject to judicial or extrajudicial stamp duties.

For foreign owners, this means that the critical calculation is from the communication date as evidenced by:

• the SPV system log,
• the postal acknowledgement of receipt (AR),
• or, exceptionally, the date of publication.

If the 45-day window is missed, ANAF and the courts will usually treat the contestation as late, unless the longer 3-month term applies or exceptional circumstances allow indirect judicial review (which is rare and uncertain).

3. How to file in practice (for non-resident owners)

Typical practical steps for a foreign shareholder/director are:

1. Immediate review of communication
   • Verify the date and method of communication (SPV, postal AR, etc.).
   • Check whether all related acts (e.g. separate decisions for interest, joint liability) have been communicated.
2. Mandate Romanian counsel or a tax representative
   • Issue a power of attorney (POA) in favour of a Romanian lawyer/tax advisor, often with certified/apostilled signatures depending on the country of origin.
   • Register the POA with ANAF so the representative can access the audit file and SPV communications.
3. Access the audit file
   • Request the tax inspection report and all underlying documents.
4. Draft and file the contestation
   • Prepare factual descriptions, legal arguments and specific requests (e.g. total annulment or partial annulment with recalculation).
   • File via ANAF registry, postal service or SPV (where applicable), keeping proof of filing and a detailed inventory of annexes.

Given the narrow deadlines and time differences, foreign owners should avoid waiting for full translations before filing; often the core arguments can be filed within the deadline and then supplemented (where legally allowed) with more detailed submissions and translations.

Evidence and documentation needed

A strong contestation is built around three main pillars:

1. ANAF’s reasoning: inspection report and file
   The inspection report and internal analysis show how ANAF reconstructed the facts, which legal provisions it relied on and where it made assumptions. Accessing and understanding this file is critical, as the subsequent court will usually start from this factual record.(petrea.eu)
2. Primary documentation and substance evidence
   Foreign-owned companies often sit at the intersection of multiple jurisdictions. Key evidence typically includes:
   • Intercompany contracts (services, loans, royalties, cost-sharing, etc.).
   • Transfer pricing documentation (local files, master file, benchmarking studies).
   • Invoices, bank statements, loan and security documentation.
   • Board minutes, e-mails and internal memos evidencing decision-making and functions performed in Romania versus abroad.
   • Substance documents: staff lists, offices, assets used, management presence, travel logs.
3. Legal arguments based on domestic law, treaties and EU law

   Common legal lines of defence include:

   • Misinterpretation or misapplication of provisions of the Fiscal Code or Fiscal Procedure Code.
   • Violations of procedural safeguards (right to be heard, incomplete reasoning, contradictions).
   • Breach of double tax treaties (e.g. misapplication of permanent establishment rules, withholding tax limitations or credit mechanisms).(Tax Summaries)
   • In EU-law situations, conflict with fundamental freedoms or EU directives.

Because ANAF’s contestation directorate operates within the tax administration, a well-structured file is not only about legal theory but also about presenting the facts clearly and persuasively for officials who may deal with large volumes of cases.

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Tax Litigation Before Romanian Courts

If the contestation is rejected or only partially admitted, or if ANAF does not solve it within the legal term, the taxpayer can initiate judicial review under the Administrative Litigation Law (Legea nr. 554/2004).(Fiscalitatea)

First-instance court, appeals, timelines

1. Competent court

Article 10 of Law 554/2004 provides that:(cmteb.ro)

• Disputes concerning taxes, duties and their accessories up to a certain monetary threshold are judged in first instance by administrative-fiscal tribunals.
• Higher-value disputes and certain acts of central authorities (including some ANAF central structures) are judged in first instance by the courts of appeal.
• Appeals against first-instance decisions are heard by the higher court (tribunal → court of appeal; court of appeal → High Court of Cassation and Justice in some cases).

In practice, ANAF’s acts are distributed between specialised administrative-fiscal sections at tribunal and court of appeal level, depending on the value and issuing authority.

2. Term for bringing the action

Under Article 11 of Law 554/2004, the general rule is that actions seeking annulment of an individual administrative act (including tax acts) must be brought within 6 months from:(LegeAZ)

• the date of communication of the response to the preliminary complaint (here, the decision on the contestation),
• the date of communication of an unjustified refusal, or
• the date of expiry of the legal term for solving the preliminary complaint (here, usually 6 months from filing the contestation, as per Article 281 Fiscal Procedure Code and the Ministry of Finance guidance).(Contabilul Manager)

If the contestation is not solved within 6 months, the taxpayer may treat this as administrative silence and go to court, without waiting indefinitely.(Contabilul Manager)

In exceptional cases, Article 11 allows an outer 1-year term, if the taxpayer could not reasonably meet the 6-month deadline, but this is interpreted restrictively by the courts.(Consultant Avocat)

3. How long does litigation take?

Timelines vary significantly by court and case complexity, but in practice:

• First-instance proceedings in substantial tax cases can take 1–2 years or more, considering expert evidence, witness hearings, adjournments and procedural incidents.
• Appeals can add 1–2 years, especially in high-value or complex cross-border cases.
• In some situations, further recourse before the High Court may be available, particularly on points of law.

During this time, tax enforcement may continue, unless it is suspended through administrative or judicial measures (see below).

Interim measures (suspension of enforcement)

1. Contestation does not suspend payment

A crucial point for foreign owners is that, under Article 278 Fiscal Procedure Code, filing an administrative contestation does not suspend the obligation to pay and does not suspend enforcement. ANAF may proceed to enforce even while the contestation and court action are pending.(Fiscalitatea)

2. Administrative suspension of enforcement (guarantee)

The Fiscal Procedure Code provides that enforcement can be suspended if the taxpayer provides adequate guarantees, typically in the form of a bank guarantee letter or insurance policy in favour of the state.(Legislatie)

Key elements:

• The guarantee must cover the tax claim (often including interest and penalties).
• Once accepted, ANAF issues a decision suspending enforcement for as long as the guarantee is valid or until the dispute is resolved.
• This option is attractive when the group has banking relationships that can provide guarantees at acceptable cost, and it avoids immediate cash outflows or asset seizures.

3. Judicial suspension under the Administrative Litigation Law

Independently of guarantees, the taxpayer may seek a court-ordered suspension of the tax act under Articles 14 and 15 of Law 554/2004.(LegeAZ)

The conditions include:

• Existence of “well-justified cases” – serious doubts about the legality of the act.
• Risk of “imminent damage” – a serious and difficult-to-repair prejudice if the act continues to produce effects.

The suspension application can be filed:

• before or together with the main annulment action (Article 14), or
• after the main action is filed (Article 15).

Court practice shows that suspension is granted selectively; the taxpayer must present both strong prima facie arguments and concrete evidence of imminent harm (e.g. threat of insolvency, disruption of operations).(GNP)

4. Contestation of enforcement acts (15-day deadline)

Separate from challenging the tax assessment itself, the Fiscal Procedure Code allows contestation of enforcement acts (e.g. garnishment orders, seizure decisions) within 15 days from their communication.(Legislatie)

This contestation is brought directly before the competent court, in an expedited procedure, and can lead to the annulment of defective or unlawful enforcement acts, without necessarily deciding on the underlying tax debt.

For foreign owners, it is important to track all enforcement communications carefully; missing the 15-day window may make it much harder to attack the way enforcement has been carried out.

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Impact on Foreign Shareholders and Cross-Border Structures

1. Risk of personal joint and several liability

The joint and several liability rules in Article 25 Fiscal Procedure Code allow ANAF to issue decisions holding certain persons personally liable for a company’s tax debts, including:(Wolters Kluwer)

• Administrators, directors and managers, where, in bad faith, they caused or contributed to non-payment of taxes (e.g. by hiding assets, failing to declare or pay taxes, or continuing operations while insolvent).
• Shareholders and other persons who acquired assets from an insolvent debtor in bad faith.
• Other categories expressly listed in Article 25.

Key aspects for non-resident owners:

• ANAF issues a separate administrative tax act (decision on joint liability), which can itself be challenged by contestation within 45 days and then in court.(avocat-cee.ro)
• Courts and legal commentators emphasise that “bad faith” (rea-credință) is a central element that ANAF must prove, not presumed by default.(avocatsorinviziru.ro)
• Once final, a joint liability decision can be used as a title for enforcement against the personal assets of the foreign director or shareholder, both in Romania and, through mutual assistance, in other EU states.(EUR-Lex)

In practice, foreign directors should treat any communication about joint liability with extreme seriousness and seek specialised representation immediately.

2. Cross-border enforcement of Romanian tax claims

Within the EU, Council Directive 2010/24/EU and its implementing measures create a framework under which tax claims established in one Member State can be recovered in another.(EUR-Lex)

In broad terms:

• Romania (through ANAF) can request another Member State to enforce a final Romanian tax claim, using a uniform instrument for enforcement recognised in the requested state.
• The requested state enforces the claim as if it were a local tax, using its own procedures.
• The debtor may still contest certain aspects (e.g. notification deficiencies, public policy concerns) in the requested state, but the substance of the underlying tax claim generally remains for the Romanian authorities/courts to decide.(Mondaq)

For non-residents, this means that ignoring a Romanian tax assessment is rarely a safe option: even if they have no assets in Romania, enforcement can be pursued where they or their group hold assets within the EU.

Outside the EU, cross-border enforcement may be possible under bilateral treaties on mutual assistance or broader cooperation frameworks, though these are more heterogeneous.

3. Double taxation and treaty relief

An ANAF tax assessment can also trigger or exacerbate double taxation, especially where:

• the same profits are allocated to more than one jurisdiction,
• withholding taxes are reassessed on cross-border payments, or
• a permanent establishment is asserted in Romania and also taxed in another state.

Romania has concluded over 80 double tax treaties (DTTs) with other countries.(Romanian Accountants) These treaties typically:

• allocate taxing rights between states,
• limit withholding tax rates on dividends, interest and royalties,
• provide mechanisms for eliminating double taxation, usually through tax credits (foreign tax relief) in the residence state of the investor.(Tax Summaries)

In addition, treaties and EU instruments may allow for Mutual Agreement Procedures (MAP) between competent authorities of the two states to resolve double-taxation disputes. Coordination between:

• the domestic ANAF contestation / court action, and
• any treaty-based procedures

is essential to avoid conflicting positions and to preserve procedural rights in both jurisdictions.

4. Governance, substance and group structuring

For foreign shareholders, an ANAF assessment is rarely an isolated Romanian event. It often exposes weaknesses in:

• Group governance – unclear allocation of responsibilities between local directors and foreign management.
• Substance in Romania and other jurisdictions – inconsistent descriptions of functions and risks in transfer pricing documentation versus reality.
• Internal documentation and decision-making – lack of minutes, absence of contemporaneous justifications for intercompany fees, loans or royalty rates.

Court practice and doctrinal analysis increasingly emphasise substance over form, scrutinising whether Romanian entities and foreign holding structures perform the functions described on paper.(jolas.ro)

A dispute, therefore, is both:

• a defensive battle about past years, and
• an opportunity to redesign structures and documentation to reduce future exposure.

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Practical Timeline and Risk Analysis for Foreign Owners

Below is a simplified end-to-end timeline for a foreign owner facing a significant ANAF assessment.

Phase 1 – Assessment and immediate reaction

Day 0 – Communication of the ANAF decision

• Tax assessment decision(s) and related acts are communicated via SPV, by post to the Romanian registered office or, in specific situations, abroad.
• From this date, the 45-day contestation period begins.(Contabilul Manager)

Days 1–15 – Rapid assessment

• Identify all acts received (assessment, interest, joint liability, etc.).
• Verify the communication date and how it is proved.
• Involve group tax, finance and legal teams; assess quantum, statute of limitations issues, interaction with other jurisdictions.

Days 15–45 – Preparation and filing of contestation

• Appoint Romanian counsel and file POA.
• Obtain and review the audit file.
• Collect and structure documentation from Romania and other states.
• Draft contestation, including procedural and substantive arguments.
• File contestation with ANAF within 45 days (or, where applicable, 3 months).(Contabilul Manager)

Risk profile in Phase 1

• High enforcement risk: ANAF can start enforcement even before the contestation is solved.
• Deadline risk: late or incomplete contestation may lock in an unfavourable position.
• Communication risk: mis-calculation of deadlines due to misunderstanding SPV or postal rules.

Phase 2 – Administrative contestation (up to 6+ months)

0–6 months from contestation – ANAF contestation directorate

• ANAF’s specialised directorate analyses the contestation, may request clarifications and eventually issues a decision on the contestation (decizie de soluționare).(Contabilul Manager)
• If ANAF fails to issue a decision within 6 months, the taxpayer may go to court for administrative silence.

Risk profile in Phase 2

• Ongoing enforcement: unless suspended, ANAF may continue garnishments, seizures, etc.
• Collateral and cash flow strain: if a guarantee was put in place for suspension.
• Negotiation leverage: a well-argued contestation may lead to partial reductions or re-qualifications even before court.

Phase 3 – Judicial phase (6–24+ months)

6–12 months – First-instance proceedings

• Taxpayer files court action within 6 months from the decision on the contestation or from the 6-month expiry.(LegeAZ)
• Proceedings include written pleadings, possible expert evidence, and hearings.

12–24+ months – Appeal and possible recourse

• The losing party may appeal; in high-value or complex matters, proceedings may extend beyond two years.

Risk profile in Phase 3

• Legal risk: outcome depends on court’s assessment of complex facts, law and sometimes expert evidence.
• Enforcement risk: if no suspension, enforcement continues; if suspended via guarantees, renewal or replacement issues arise.
• Cross-border risk: final Romanian decisions may be exported for enforcement abroad under EU mutual assistance rules.(EUR-Lex)

Strategic risk matrix for foreign owners

1. Enforcement risk
   • Domestic: bank account freezes, seizures, liens in Romania.(Legislatie)
   • Cross-border: enforcement of Romanian tax claims in other EU states under Directive 2010/24/EU.
2. Personal liability risk
   • Potential issuance of joint liability decisions against non-resident directors/shareholders, especially in cases involving perceived abusive behaviour, asset stripping or deliberate non-payment.(Wolters Kluwer)
3. Double taxation risk
   • Overlap between Romanian assessments and taxation in other states; need to coordinate DTT relief, foreign tax credits and MAP with local advisers.(Tax Summaries)
4. Governance and reputational risk
   • Court files are generally public; disputes may raise questions about group governance, ESG and tax integrity.

For foreign groups with substantial operations or assets in Romania and the EU, the rational response is typically a coordinated strategy combining:

• Romanian tax and litigation counsel,
• group-level tax and finance expertise, and
• local advisers in key jurisdictions where enforcement or double-taxation issues may arise.

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Conclusion

Challenging an ANAF tax assessment as a foreign owner of a Romanian company is a highly structured but demanding process. The key success factors are:

• Understanding communication and deadlines – knowing exactly when the assessment was communicated and when the 45-day and 6-month clocks started ticking.
• Building a robust administrative contestation – comprehensive factual and legal arguments, well-organised evidence and clear requests.
• Using the full toolkit of interim measures – guarantees, judicial suspension and contestations of enforcement to manage cash flow and asset protection.
• Pursuing strategic litigation – timely and carefully argued court actions before the competent administrative-fiscal courts.
• Integrating cross-border considerations – joint liability exposure, mutual assistance for tax recovery and double-taxation relief mechanisms.

For non-resident shareholders and directors, the most important message is that a Romanian tax assessment is not a purely local issue. It interacts with EU law, double-taxation treaties and the legal systems of other states where the group operates. Addressing it early and strategically is essential to protecting both the Romanian business and the wider group.

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