SINTEZĂ DE JURISPRUDENȚĂ FISCALĂ NAȚIONALĂ NOIEMBRIE – DECEMBRIE 2023
NATIONAL TAX CASE-LAW NOVEMBER – DECEMBER 2023

Summary/Abstract: A recent decision of the Romanian High Court of Cassation and Justice allows a few comments both in the negative and the positive. On one hand, the High Court disregarded the nature of the General Anti‑Avoidance Rule (GAAR) contained in art. 11 par. (1) of the old and also the new Romanian Tax Code and ruled that this clause applied to indirect taxes such as VAT as well. The author criticizes such an approach which is considered to be contrary to the Commission’s Recommendation on Aggressive Tax Planning (2012) and contrary to the intent of the Romanian legislator. On the other hand, the High Court seems to have understood the theory of the innocent party in the field of VAT and to have applied the case‑law of the Court of Justice of the European Union accordingly/ The author comments on a recent decision issued by the Galați Court of Appeal. This court ruled there is no liability of a taxable person which initially received an invoice including VAT for a supply of goods and, four years later, received the corrected invoice with no VAT. Parties agreed to amend their initial invoice in accordance with the Fatorie case‑law, since the reverse charge mechanism was actually applicable. Since the respective VAT amount was initially paid to the state budget and remained paid for almost four years, the appeal court found there was no prejudice to the state budget and, therefore, no tax liability for the beneficiary of the supply.

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