Criminal cases triggered by tax audits: how ANAF inspections turn into tax evasion charges

In reality, this path is clearly regulated in Romanian tax and criminal law, mainly by Law no. 207/2015 on the Fiscal Procedure Code, Law no. 227/2015 on the Fiscal Code, Law no. 241/2005 on preventing and combating tax evasion, as amended by Law no. 126/2024, as well as by the Criminal Procedure Code.

This article aims to explain, in accessible language:

• the legal framework governing tax inspections and criminal complaints filed by ANAF;
• the stages through which a tax audit may lead to a criminal case;
• how the offence of tax evasion is structured and what is new under Law no. 126/2024;
• the role of the tax lawyer and the criminal defence lawyer and why their cooperation matters;
• what rights the taxpayer has and which defence strategies are possible, including covering the tax loss;
• how all this ties in with recent case-law of criminal and tax courts.

Throughout the article we will refer to public resources: updated legislation on the Legislative Portal, ANAF materials (such as the ANAF brochure on amendments to Law 241/2005), analyses published by tax and criminal law professionals on websites such as fiscalitatea.ro, contabilul.manager.ro, teaha.ro, pwc.ro, as well as judgments published on jurisprudenta.com and legeaz.net.

1. Legal framework: where tax law meets criminal law

To understand how a tax audit may end up as a criminal case, we first need to identify the relevant legal provisions and the role of each authority involved.

1.1. Tax audits and ANAF inspections – Fiscal Procedure Code

Tax inspections are regulated in Title VI of the Fiscal Procedure Code, in particular Articles 116–132, which set out the types of tax audits, taxpayers’ rights and obligations, the content of the tax inspection report and the circumstances in which the tax authority must notify criminal investigation bodies.

Two provisions are key for the transition from tax to criminal:

• Article 131 FPC – Result of the tax inspection, which states that the outcome of the inspection is normally recorded in a tax inspection report, except where facts are found that may constitute criminal offences, in which case Article 132 applies; the text can be consulted, for example, on legislatie.info and ro.wolterskluwer.ro;
• Article 132 FPC – Notification of criminal investigation bodies, which expressly provides for the tax inspectors’ duty to notify the criminal prosecution bodies when facts identified during the tax inspection could meet the elements of a criminal offence; the current text is available on legislatie.info – art. 132 and ro.wolterskluwer.ro.

Practical application of these provisions is laid down in more detail by the Procedure implementing Article 131(1) FPC, approved by ANAF Order no. 1.071/2021, which is explained in accessible terms on websites such as teaha.ro, contabilul.manager.ro, ceccar.ro and contzilla.ro.

1.2. Tax evasion offences – Law 241/2005 and amendments by Law 126/2024

The offence of tax evasion is governed by Law no. 241/2005, which lists in detail the acts that qualify as tax evasion and the corresponding penalties. Key provisions include Articles 6¹, 8, 9 and 9², summarised in updated form on websites such as e-juridic.manager.ro and the ANAF brochure on Law 126/2024.

Law no. 126/2024 brought significant changes, including:

• introducing new forms of tax evasion, for example relating to the bad-faith use of the RO e-Factura system or the use of unconnected or tampered cash registers, as discussed in analyses on noulcodfiscal.ro and fiscalitatea.ro;
• setting threshold values for increasing penalty ranges, depending on the amount of damage (for example, above EUR 500,000 or EUR 1,000,000 equivalent in RON, as explained in the ANAF brochure referenced above);
• clarifying conditions under which full payment of the tax loss may lead to impunity or substantial reduction of penalties, under Article 10 of Law 241/2005, analysed in articles such as those on chirita-law.com and consultantavocat.ro;
• allocating competence to the National Anticorruption Directorate (DNA) for certain major tax evasion cases, as outlined in the alert published by pwc.ro.

1.3. Criminal procedure – Criminal Procedure Code and the role of prosecutors

Once the tax inspection body has notified the prosecution office, the procedure follows the general rules in the Criminal Procedure Code (CPC):

• registering the notification and initiating criminal proceedings in rem (with respect to the act);
• taking evidence (documents, witness statements, accounting/tax expert opinions);
• extending the investigation in personam (with respect to identified suspects) where there are grounds to believe that specific persons committed the offence;
• issuing the final prosecutorial decision (dismissal, indictment, discontinuation of proceedings, etc.) in accordance with the CPC.

Throughout this process, the tax inspection report and ANAF minutes are pieces of evidence, but courts have repeatedly held in recent case-law that they must be critically assessed and corroborated with other evidence, not taken as an undisputable truth. This approach emerges from judgments summarised, for example, on jurisprudenta.com, legeaz.net and in decisions of the High Court of Cassation and Justice published in the Official Gazette.

2. Stages of a tax audit: from notice to report

Before discussing criminal referral, it is useful to understand how a tax audit typically unfolds.

2.1. Tax inspection notice and preparing the taxpayer

A tax inspection usually starts with the issuance of a tax inspection notice, under Articles 117 and following of the Fiscal Procedure Code, indicating the period under review, the taxes and contributions concerned, the start date of the audit and the taxpayer’s rights. Basic information is available on anaf.ro, as well as in ANAF guides such as the Tax Inspection Guide and in practitioner articles on fiscalitatea.ro.

At this stage, the taxpayer can:

• organise accounting and tax documents (ledgers, trial balances, contracts, invoices, SAF-T files, e-Factura files, etc.);
• discuss with the accountant and, ideally, with a tax lawyer about identifiable risks;
• decide a communication strategy with the inspectors (who attends meetings, who signs documents, how written responses are formulated).

2.2. Conduct of the audit: discussions, documents, clarifications

During the audit, ANAF reviews the documents provided, seeks clarifications, compares tax returns with the accounting records and uses its own data (e-Factura, e-Transport, data from connected cash registers, etc.). Each request is recorded in minutes, and the taxpayer may submit written comments and additional documents.

Specialised websites such as contabilul.manager.ro, infotva.manager.ro and taxhouse.ro regularly publish case studies on how tax authorities interpret various operations (service invoices, missing stocks, intra-group transactions, per diem expenses, etc.).

2.3. Tax inspection report and tax assessment decision

As a rule, at the end of the inspection, the tax authority prepares a tax inspection report (Article 131 FPC) and issues a tax assessment decision or a decision maintaining previously declared tax obligations. The report details factual and legal findings, and the taxpayer has the right to submit comments before its finalisation.

Tax assessment decisions may be challenged in the administrative appeal procedure provided by Articles 268–270 FPC and later before the administrative courts, as explained, for example, on petrea.eu and fiscalitatea.ro.

3. The turning point: when a tax audit becomes a criminal risk

The move from a tax dispute to a criminal suspicion of tax evasion occurs when, during the inspection, the auditors identify facts or patterns that go beyond mere misinterpretation of the law or negligence and enter the area of intentional evasion of tax obligations.

3.1. Typical red flags for ANAF

In practice, some of the indicators that may trigger criminal considerations are:

• use of fictitious invoices or invoices issued by so-called shell companies in order to reduce the taxable base, a topic frequently addressed in analyses on legal-land.ro and cabinetexpert.ro;
• systematic non-recording of revenues (for example cash sales without fiscal receipt or invoice), a topic discussed on infocontact.ro;
• alteration or destruction of accounting documents, cash register memories or other tax data carriers, explicitly listed as offences in Article 9 of Law 241/2005 and discussed in the ANAF brochure;
• significant discrepancies between book and physical stock, without credible explanations, a recurring topic in tax practice reported on contabilul.manager.ro;
• withholding and non-payment in due time of payroll taxes and social contributions, which under Article 6¹ of Law 241/2005 constitutes a criminal offence, punishable by imprisonment or a fine, as described in the ANAF brochure cited above.

3.2. The difference between tax error and tax evasion

Not every difference found by ANAF amounts to tax evasion. It is important to distinguish between:

• calculation errors, debatable interpretations of a tax rule, unintentional omissions, which may lead to additional tax liabilities, interest and penalties, but generally do not entail criminal liability;
• systematic, deliberate behaviour aimed at artificially reducing the taxable base (fictitious invoices, double bookkeeping, hiding significant revenues, manipulating documents), which falls within the scope of tax evasion.

In many cases, courts assess the boundary between negligence and intent on a fine-grained basis, examining the evidence, including accounting and tax expert reports, as shown for instance in High Court decisions such as Decision no. 39/2023 of the High Court and other judgments summarised on jurisprudenta.com.

4. The criminal referral procedure: Article 132 FPC and ANAF Order 1.071/2021

When tax inspectors detect indications of criminal offences, it is not up to them to decide whether or not to notify the prosecution. They have a statutory duty to do so under Article 132 of the Fiscal Procedure Code.

4.1. What Article 132 FPC provides

According to Article 132 FPC – Notification of criminal investigation bodies, the tax inspection body must notify the competent criminal investigation body of the findings made during the inspection that may meet the elements of a criminal offence, as provided by criminal law. To this end:

• the inspectors draw up a finding report describing the facts and legal basis;
• the report is accompanied by relevant documents (contracts, invoices, bank statements, ledgers, etc.);
• this report represents the trigger document for the criminal case and serves as the basis of the file transmitted to the prosecution office, as highlighted in analyses such as the alert on pwc.ro regarding Order 1.071/2021.

4.2. The special procedure under Order 1.071/2021

The procedure approved by ANAF Order 1.071/2021 sets out step by step what inspectors must do when they identify possible criminal offences, including:

• identifying the taxes and periods concerned by the alleged criminal acts;
• deciding whether to draw up a tax inspection report for all periods or only for those not affected by the suspected offences;
• informing the taxpayer that for certain periods or obligations the report is not yet drawn up because a finding report has been prepared for criminal referral;
• suspending the statute of limitation for tax purposes for the obligations and periods covered by the report, under Article 111(2)(e) FPC, as explained in detail in CECCAR analyses and articles on teaha.ro.

4.3. What the taxpayer actually receives

In practice, the taxpayer may receive:

• a tax inspection report for certain periods or categories of obligations, together with the tax assessment decision;
• a notification that, for other periods or types of obligations, the inspection has not been finalised and that a finding report has been drawn up as the basis for a criminal referral;
• possibly, later communications about the suspension of tax limitation periods and the number of the criminal file opened by the prosecution office.

At this point, it is crucial for the company or director to consult promptly a lawyer with combined tax and criminal expertise, or a team consisting of a tax lawyer and a criminal defence lawyer, in order to understand both the tax implications (assessment decisions, appeals) and the criminal ones (investigation, potential preventive measures).

5. From ANAF referral to a criminal case for tax evasion: stages of the criminal process

Once the ANAF report reaches the prosecution office, a new phase begins, governed by the Criminal Procedure Code.

5.1. Registering the referral and starting criminal investigation in rem

The referral from ANAF is registered with the prosecution office and generally leads to the opening of criminal proceedings in rem (with respect to the acts). At this stage:

• the prosecution identifies the facts reported (for example issuing and using fictitious invoices, evasion of VAT and corporate tax, failure to withhold or pay payroll taxes, etc.);
• the documentation submitted by ANAF is reviewed (finding report, document copies, potentially partial tax inspection report);
• additional checks may be ordered: requests for further documents, queries to databases (RO e-Factura, e-Transport), information from banks, etc.

5.2. Hearings and extension in personam

As evidence is gathered, the prosecutor may find that there are indications that certain individuals (directors, shareholders, accountants or other persons) have committed the alleged offences. The investigation is then extended in personam, and such persons may:

• be summoned for hearings as suspects or defendants;
• be subject to procedural measures (searches, seizure of documents, precautionary measures), under the conditions laid down by the CPC;
• exercise essential rights (the right to remain silent, the right to counsel, the right to propose evidence), as explained in guides and articles on e-juridic.ro, consultantavocat.ro and avocatura.com.

5.3. The role of accounting and tax expert evidence

In many tax evasion cases, one of the core pieces of evidence is the accounting or tax expert report, which addresses questions such as:

• whether the operations were real (whether the goods or services invoiced actually existed, whether prices were reasonable, etc.);
• the amount of the tax loss (VAT, corporate income tax, personal income tax, social contributions, etc.);
• any differences between the expert’s conclusions and those in the ANAF tax inspection report.

Court practice has repeatedly stressed that an independent expert opinion may overturn or qualify ANAF’s findings. Decisions such as High Court Decision no. 39/2023 and High Court Decision no. 66/2021 on Article 10 of Law 241/2005 are relevant for understanding how the tax loss and its recovery impact the criminal outcome.

5.4. Possible outcomes of the criminal case

Depending on the evidence, the defendant’s position and the way the tax loss is addressed, the criminal case may end in different ways:

• dismissal (for example, where the act does not exist, is not provided for by criminal law or there is insufficient evidence), by reference to Article 16 CPC;
• waiver of prosecution or waiver of the application of punishment, in specific circumstances provided by law;
• indictment, with the case being brought before the criminal court for trial;
• discontinuation of the criminal proceedings where a ground for exclusion of criminal liability under Article 10 of Law 241/2005 applies, for instance where the tax loss is fully covered, in line with the statute and the amendments brought by Law 126/2024, as discussed on chirita-law.com.

6. The tax evasion offence: typologies, thresholds and effect of paying the tax loss

Law 241/2005, as amended by Law 126/2024, sets up a strict sanctioning regime, but at the same time provides mechanisms whereby, under certain conditions, criminal liability may be avoided or penalties substantially reduced.

6.1. Main forms of tax evasion typically linked to ANAF audits

Among the acts listed in the statute, the ones most frequently encountered in practice, following tax inspections, include:

• recording fictitious operations or expenses that do not relate to actual transactions in accounting or other legal documents (Article 9(1)(c) Law 241/2005), explained, for instance, in the ANAF brochure on Law 126/2024;
• altering, destroying or hiding accounting documents or cash register memories, offences also provided in Article 9(1), discussed in the ANAF brochure and in articles on fiscalitatea.ro;
• withholding and non-payment of payroll taxes and social security contributions, criminalised by Article 6¹ Law 241/2005, with penalties ranging from 1 to 5 years’ imprisonment or a fine, as set out in the ANAF brochure and commentaries on contabilul.manager.ro;
• manipulating the RO e-Factura system or using unconnected or tampered cash registers in bad faith, typologies detailed on noulcodfiscal.ro;
• wholly or partially failing to record commercial operations or revenues, which constitutes a classic tax evasion offence analysed in depth in articles on e-juridic.ro.

6.2. Thresholds and DNA competence

Law 126/2024 significantly changed how the amount of tax loss affects penalty ranges and the competence of prosecuting bodies. According to ANAF and analyses on fiscalitatea.ro and pwc.ro:

• if the tax loss exceeds certain thresholds (e.g. EUR 500,000 or EUR 1,000,000), penalty limits under Article 9 are increased both at the lower and upper end;
• if the damage caused by tax evasion offences exceeds RON 10 million, competence for criminal investigation lies with the National Anticorruption Directorate (DNA), pursuant to Article 13 of Government Emergency Ordinance 43/2002 as amended by Law 126/2024, as also reflected in the materials published on anaf.ro.

6.3. Payment of the tax loss and effects on criminal liability

In tax evasion cases, the tax loss and, in particular, how it is recovered play a central role. Article 10 of Law 241/2005, interpreted in light of the amendments introduced by Law 126/2024, provides for scenarios where:

• full payment of the tax loss (taxes, VAT, contributions) and accessories by certain procedural milestones (typically by the first hearing date) may lead to discontinuation of criminal proceedings or to substantial reduction of penalties;
• in some circumstances, payment of the entire loss by one defendant may have consequences for other participants, as underlined in analyses on chirita-law.com and in High Court case-law;
• the High Court clarified, for example through Decision no. 39/2023, issues such as coverage of the tax loss through enforcement and how this affects the application of Article 10.

These aspects mean that defence strategy is closely linked to the timing and manner of paying the tax loss, combined with potential challenges to how the loss was assessed in the tax procedure.

7. The relationship between tax proceedings and the criminal case

In many situations, the taxpayer is simultaneously faced with:

• a tax dispute (appeal against the tax assessment decision, administrative and tax litigation);
• a criminal case for tax evasion or related offences, where the tax loss is often calculated starting from the ANAF report.

7.1. Can tax and criminal proceedings run in parallel?

Yes. Practice confirms that tax proceedings (assessment and challenge of tax liabilities) and criminal proceedings may run in parallel. Courts have often had to clarify:

• whether the outcome of the tax case (for example, annulment of the tax assessment decision) directly affects the criminal case;
• whether the criminal court is bound by ANAF’s assessment of the tax loss or may determine it independently;
• to what extent the criminal outcome (acquittal, conviction, discontinuation) impacts enforcement of tax obligations.

Doctrinal articles and relevant judgments on these issues are available, for instance, on legal-land.ro, consultantavocat.ro and in High Court decisions published on legeaz.net.

7.2. Suspending the tax case pending the criminal outcome

In practice, some administrative courts have opted to suspend tax litigation until the criminal case is resolved, where the issue of the tax loss is common and closely tied to the criminal accusation. Other courts have continued the tax proceedings, considering that they had sufficient elements to rule independently on the legality of the tax assessment.

There is no one-size-fits-all answer, but the risk of conflicting outcomes requires careful coordination between the tax and criminal defence strategies so that technical arguments (accounting and tax) are presented consistently in both forums.

8. The role of tax and criminal lawyers: prevention and integrated defence

Criminal cases triggered by tax audits sit at the intersection of two complex areas: tax and accounting on the one hand, and criminal procedure on the other. Effective defence therefore usually requires an integrated approach:

• the tax lawyer has in-depth knowledge of tax legislation, ANAF practice, tax inspections and procedures for challenging tax assessment decisions;
• the criminal defence lawyer knows criminal procedure, defence strategies before prosecutors and courts, and the rules on taking and challenging evidence, including expert reports;
• the accountant or tax consultant can reconstruct accurate financial and tax data and support the technical side of the defence.

8.1. Early involvement during the tax inspection

Involving a lawyer from the audit stage is often critical:

• the lawyer can help draft written submissions during the inspection to clarify and document sensitive issues;
• can identify criminal risks in conclusions that inspectors tend to include in the report or in the finding report for criminal referral;
• can advise the taxpayer on the right not to self-incriminate, especially when asked for explanations that may later be used in a criminal case.

8.2. Defence strategy in the criminal phase

In the criminal phase, the lawyer’s role includes:

• analysing the case file and correlating ANAF’s findings with other evidence (contracts, correspondence, factual situations not reflected in tax documents);
• proposing independent accounting/tax expert reports or counter-expert opinions;
• where appropriate, building a strategy that includes payment of the tax loss under Article 10 Law 241/2005 to obtain a more favourable outcome (for instance, discontinuation of the criminal proceedings or a reduced penalty);
• raising any procedural irregularities (such as unlawful tax inspections, lack of competence, breaches of defence rights) that may affect the validity of tax evidence.

9. Practical examples (simplified)

9.1. VAT audit and allegedly fictitious service invoices

A company is audited for VAT and corporate income tax. ANAF finds that a service provider (marketing, consultancy) has no employees, no material resources and appears on a list of high-risk companies. The inspectors consider the invoices issued by this supplier to be fictitious, deny the company’s right to deduct VAT and the deductibility of related expenses, and the additional tax is substantial. They then prepare a finding report for a criminal complaint on the grounds of tax evasion through recording fictitious operations.

In such cases, the defence may aim to:

• prove the reality of the services (reports, deliverables, correspondence, measurable results);
• assess ANAF’s approach against EU Court of Justice standards on VAT fraud (for example, the requirement to consider the recipient’s good faith);
• obtain accounting or tax expert reports comparing the actual economic data with ANAF’s presumptions.

9.2. Withholding and non-payment of social contributions

Another frequent scenario involves companies that, during periods of financial hardship, pay employees’ net wages but not the corresponding social security contributions and income tax. Currently, failure to withhold or withholding and failing to pay certain taxes and contributions within the statutory time limit are criminal offences under Article 6¹ Law 241/2005, punishable by 1 to 5 years’ imprisonment or a fine, as explained in the ANAF brochure.

Here, defence strategy may include:

• analysing the company’s cash flow and management decisions in detail;
• addressing the issue of intent (was there a plan never to pay these contributions or only temporary delays due to lack of liquidity?);
• planning and making full payment of the tax loss to benefit from Article 10 (grounds for impunity or reduction of the penalty).

9.3. Trade in goods without proper tax documentation

In sectors such as retail, small commerce or hospitality, audits may reveal sales without fiscal receipts, missing stock and large discrepancies between inputs and outputs. ANAF may consider that significant undeclared revenues exist and file a criminal complaint for tax evasion by non-recording of revenues.

In defence, it is essential to:

• reconstruct actual transactions (through physical inventory, supplementary documentation, third-party confirmations);
• explain any losses, promotions or wastage that may account for part of the discrepancies;
• scrutinise how ANAF estimated undeclared revenues, to identify potential overestimations or unsupported assumptions.