INFRACŢIUNEA DE EVAZIUNE FISCALĂ. EVOLUŢIA FENOMENULUI INFRACŢIONAL ŞI RADIOGRAFIA TEXTELOR LEGISLATIVE
THE OFFENCE OF TAX EVASION. THE EVOLUTION OF THE CRIMINAL PHENOMENON AND THE LEGISLATIVE TEXTS

Summary/Abstract: Given the permanent increase in taxpayers' fiscal obligations (taxes, fees, other amounts owed to the budget sector), as well as parafiscal obligations, various methods of evading the fiscal provisions that establish such obligations have arisen. Thus, the taxpayers' attempt to evade the law some income or some taxable goods represents, in essence, the evasion phenomenon. According to a report by the Ministry of Finance, in 2008, the underground economy represented 21% of GDP. Also, according to the statistical data of the Romanian Intelligence Service, tax evasion is a phenomenon that has gained momentum in Romania, the damage being 13.8% of GDP in 2012. Currently, tax evasion represents approximately 10% of the gross domestic product. The causes of tax evasion are multiple, from the existence of an incomplete legislative system, with numerous gaps and ambiguities, to the insufficiency of tax and civic education of the taxpayer. At the same time, the conduct of illegal activities or the incorrect management of records regarding the determination of expenses, income and fiscal obligations are causes that lead to the appearance of the phenomenon of tax evasion. Citizens must be educated and informed in terms of complying with the obligations set for them. At the same time, it is necessary to inform and report on the punishments and sanctions provided for by the fiscal or even criminal legislation, for those who break the law. We show that although this differentiation between legal tax evasion and tax fraud is unanimously accepted, there are doctrinal opinions, to which we agree, through which it has been shown that the delimitation of a concrete and precise border between the two forms of tax evasion constitutes an approach relative and often subjective, because there is a continuity between the two. Moreover, we consider that any type of tax evasion is illegal, so tax evasion could not materialize in a legal action. The evasion of the duties to pay the sums of money owed is obviously manifested by violating the law, by defrauding it, so we are in the presence of an act that presents an obvious fraudulent character, which can only be illegal. The legal framework in the field of tax evasion crimes is given by Law no. 241/2005 for the prevention and combating of tax evasion, with subsequent amendments and additions, in force in Romania starting from August 27, 2005. Recently, Law no. 241/2005 for preventing and combating tax evasion was amended and supplemented by Law no. 55/2021. Practically, the legislator criminalizes two categories of crimes, namely those of tax evasion and those related to them, in the case of both categories of crimes, the active subject can be both the natural person and the legal person. The material element can be achieved through both action and inaction. Thus, crimes regulated by law can be commission or omission, result or danger. ÎCCJ, criminal section, by decision no. 332/RC of November 21, 2014, held that "the fact of the defendants of putting into circulation counterfeit stamps, labels and bands applied to bottles of spirits, these having a special regime and being used in the fiscal field, constitutes the crime of tax evasion, provided for and sanctioned by art. 7 para. (2) from Law no. 241/2005 for preventing and combating tax evasion". It is relevant that it is not a crime of tax evasion to omit the payment, in whole or in part, of a legally due tax, as long as the income and operations have been highlighted in the accounting documents and have been declared to the tax body, the latter thus having the opportunity to ascertain and verify the commercial operations carried out, the revenues achieved and their source, as well as to establish any taxes payable by the taxpayer. In this case, only the obligation to pay the respective tax arises, not the criminal liability, and the deed does not fall within the scope of the criminal offense.

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