ACCESS TO FILE: RIGHT(S) OF THE DEFENCE OR DEFENCE OF THE RIGHT(S)?

Author(s): Cosmin Flavius Costaş / Language(s): English Issue: 5/2018

In November 2017, the Court of Justice of the European Union ruled in the Romanian Ispas case and decided that taxpayers are entitled to have access to file in VAT inspections. The unprecedented recognition of the fundamental right(s) of the defence leads to a number of questions as to the extent of the breach the Court made in the regular defence of national tax administrations. The paper aims to look into the lights and shadows of the European VAT inspections and to scientifically build a specific model for the appropiate exercise of taxpayer’s access to file, in particular with regard to VAT fraud cases. In this respect, the author shall consider comparative approaches and a thourough analysis of the Court’s case law concerning VAT and procedural rights. Equally important, the paper shall consider the possible effect of the Ispas Judgement on the general development of the European rights of defence in all tax cases.

Examen jurisprudențial privind incidența art. 43 alin. (3) C. proc. fisc. în soluționarea litigiilor administrativ-fiscale. Dreptul de impunere al organelor fiscale din cadrul unităților administrativ-teritoriale și delimitarea teritorială

Author(s): Razvan Viorescu / Language(s): Romanian Issue: 4/2018

The present study focuses objectively on the main recent jurisprudential aspects (starting from the courts of justice within the area of the Court of Appeal of Suceava), on the manifestation of the competence conflict on tax matters between two administrative bodies regarding the same tax matters regulated by art. 43 parag. (3) of the Code of Fiscal Procedure – Act no. 207/2015. The zoning by-law of the two administrative bodies (i.e. the court decision that clarifies the misunderstandings between the neighbours regarding the settlement of the line boundary) that the administrative body refers to as being the legal document based on which the taxpayer would pay in the form of tax is not to be used as a proof in itself for the legitimacy of this change in the present – day legislation – Act no. 2/1968. From this point of view, the study focuses on criticizing the divergent interpretation of the court that is in disagreement with the jurisprudence of the Constitutional Court. This means that, as a result of the effective date of art. 11 parag. (81 ) of Act no. 7/1996, the mandatory use of the recognized limit boundaries is based on the delineation document with all its adjacent consequences, including the ”fiscal” ones. Thus, the study is meant to support the Romanian specialists both by presenting the legislative/jurisprudential references and providing examples of the legal reasoning used to sustain the demonstration in the litigation for which the taxpayers challenged the fiscal and administrative decisions to impose documents released by the ”new competent fiscal authority”.

Taxa de clawback. Efectele Deciziei Curții Constituționale nr. 39/2013 și alte implicații ale acestei taxe (II)

Author(s): Gabriela Dănilă / Language(s): Romanian Issue: 4/2018

The clawback tax was not a tax that would pass away without causing legal issues – probably because of the social and economic context in which it was adopted. Therefore, the tax was analyzed by the Constitutional Court which concluded that no clawback tax could be paid and by reference to the amounts charged for VAT. Afterwards, the ordinary courts were loaded with statements of claim by the drug producers which demanded either the removal of the duty to pay the tax or its reduction.

SINTEZĂ DE JURISPRUDENȚĂ FISCALĂ NAȚIONALĂ (septembrie – octombrie 2018)

Author(s): Cosmin Flavius Costaş / Language(s): Romanian Issue: 4/2018

National Tax Case-Law (September – October 2018)

Repertoriul de jurisprudenţă în materie fiscală al Curţii de Justiţie a Uniunii Europene (septembrie – octombrie 2018)

Author(s): Alexandra-Maria Mureșan / Language(s): Romanian Issue: 4/2018

The Case-Law of the European Court of Justice (September – October 2018)

SINTEZĂ DE JURISPRUDENȚĂ NAȚIONALĂ (iulie-august 2018)

Author(s): Cosmin Flavius Costaş / Language(s): Romanian Issue: 3/2018

National Tax Case-Law (July-August 2018)

Repertoriul de jurisprudenţă în materie fiscală al Curţii de Justiţie a Uniunii Europene (iulie-august 2018)

Author(s): Alexandra-Maria Mureșan / Language(s): Romanian Issue: 3/2018

The Case-Law of the European Court of Justice (July-August 2018)

SINTEZĂ DE JURISPRUDENȚĂ NAȚIONALĂ (mai-iunie 2018)

Author(s): Cosmin Flavius Costaş / Language(s): Romanian Issue: 2/2018

National tax case-law (May-June 2018)

Repertoriul de jurisprudenţă în materie fiscală al Curţii de Justiţie a Uniunii Europene în lunile mai-iunie 2018

Author(s): Alexandra-Maria Mureșan / Language(s): Romanian Issue: 2/2018

The case-law of the European Court of Justice (May-June 2018)

THE IMPACT OF THE JUDGEMENT IN CASE C-219/17, BERLUSCONI AND FININVEST, ON COURT JURISDICTION REGARDING LEGALITY OF ACTS BY INSTITUTIONS OF SINGLE RESOLUTION MECHANISM

Author(s): Märt Maarand / Language(s): English Issue: 2/2019

A case of the European Court of Justice C-219/17, Berlusconi and Fininvest, laid down important rules for differentiating between the jurisdictions of EU courts and national courts in actions challenging the final decisions of composite procedures in the Single Supervisory Mechanism. As this judgement does not cover all scenarios, nor are there such decisions regarding the Single Resolution Mechanism, a universal test is developed for revealing if EU courts or national courts have jurisdiction over acts of composite procedures in the Banking Union. This test is then implemented on the most important acts within the Single Resolution Mechanism.

Confiscarea armei în situaţia nedepunerii la un armurier autorizat după expirarea perioadei de valabilitate a permisului de armă

Author(s): Adrian Șandru,Dorel Herinean / Language(s): Romanian Issue: 01/2020

Revision against judgment in contested procedure, a challenge or legal certainty

Author(s): Rrustem Qehaja / Language(s): English Issue: Special/2019

In this scientific paper shall be handled a special segment of contested procedure concerning the possibility of submitting revision as one of the extraordinary legal remedies against rendered judgment in contested procedure in a context of critical overview between amendment and supplement of contested procedure current law in comparison to previous law of contested procedure and contested procedure laws of region countries including the former Yugoslav Republic of Macedonia, now The North Macedonia and Bosnia and Herzegovina. Frequent amendments of laws question citizen legal certainty and potential investors especially in those countries with fragile democracies that are going through transition phase, as is the case in Kosovo. Revision is one of the extraordinary legal remedies of appealing final court decisions rendered by the second instance court, whichmay be submitted due to numerous causes within limits and deadlines provided by law. By revision, may come to correction of substantive or procedural law eventual omission madein the second instance court trial.

Sinteză de jurisprudență fiscală națională comentată

Author(s): Alina Arsene,Viorel Terzea / Language(s): Romanian Issue: 1/2020

Sinteza hotărârilor în materie fiscală pronunțate de Curtea de Justiție a Uniunii Europene în perioada ianuarie-februarie 2020

Author(s): Author Not Specified / Language(s): Romanian Issue: 1/2020

Restituirea cu întârziere, din culpa organului fiscal, a accizelor aferente exportului. Dobânda aferentă sumei ce trebuia restituită cu titlu de acciză, sumă restituită cu o întârziere de 202 zile față de termenul legal, de către organul fiscal

Author(s): Daniela-Ioana Stăncioi / Language(s): Romanian Issue: 2/2020

Late return, due to the fault of the tax authority, of the excises related to the export. Interest related to the amount to be reimbursed as excise, amount reimbursed with a delay of 202 days from the legal deadline, by the tax authority

Sinteză de jurisprudență fiscală națională comentată

Author(s): Viorel Terzea / Language(s): Romanian Issue: 2/2020

Synthesis of national tax case law

Repertoriul de jurisprudenţă în materie fiscală al Curţii de Justiţie a Uniunii Europene (noiembrie – decembrie 2019)

Author(s): Alexandra-Maria Mureșan / Language(s): Romanian Issue: 6/2019

The Case-Law of the European Court of Justice (November – December 2019)

Sinteză de jurisprudență fiscală națională comentată

Author(s): Daniela-Ioana Stăncioi,George Cristian Vioreanu,Viorel Terzea / Language(s): Romanian Issue: 3/2020

Synthesis of national tax case law

INCERTITUDINEA ȘI CONTENCIOSUL ADMINISTRATIV. ANALIZA UNEI PREVEDERI LEGALE „BUMERANG”: DESPRE ÎNCETAREA EFECTELOR SUSPENDĂRII ACTELOR ADMINISTRATIV-FISCALE ÎN LUMINA PREVEDERILOR ART. 278 ALIN. (5) C.PR.FISC.

Author(s): Ovidiu Podaru,Anda Bachiș / Language(s): Romanian Issue: 2/2020

Stay action of administrative-fiscal acts, in essence, a ‛derivative’ of the ordinary stay action (regulated in the matter of administrative litigation by art. 14 and 15 of the Romanian Law no. 554/2004), may raise issues in judicial practice, unsuspected at the first reading of the Romanian Fiscal Procedure Code. For example, art. 278 para. (5), that regulates the legal cessation (sudden, automatic) of this special type of suspension, and which was intended to be beneficial to the individual, can often have the opposite effect to that pursued by the legislator, if this text of the law is interpreted literally. Nevertheless, the historical evolution of the institution, corroborated with the principles that govern it, requires an interpretation of the norm in its spirit (in consensus with the purpose for which it was adopted). This interpretation leads to a surprising conclusion: even if art. 278 para. (5) establishes the time of communication of the decision to resolve the administrative appeal as the only time frame from which the 60-day period begins to run, which conditions the effects of the suspension, in fact, as it could not run before the effective disposition of the measure, the first moment of the term must be established differently, as the settlement of the administrative appeal is prior or, on the contrary, subsequent to the pronouncement of the suspension by the court. And this is because the new regulation of the legal termination of the suspension measure should have, compared to the ordinary administrative law regulation, only dilatory effects, not peremptory effects.

EVOLUȚII ȘI PERSPECTIVE ÎN REGLEMENTAREA DAUNELOR MORALE ÎN CAZUL ASIGURĂRII OBLIGATORII DE RĂSPUNDERE CIVILĂ AUTO (RCA)

Author(s): Bogdan Ioniță / Language(s): Romanian Issue: 2/2020

For a long time now, the courts have been left to determine the amount of the general damages claimed by the injured persons as a result of traffic accidents. In the absence of mandatory legal or case law guidelines or criteria the case law generated unpredictability with negative effects on all those involved. The Romanian case law has managed to set as benchmarks only certain general criteria for assessing the amount of the compensation for personal injuries, failing to set out fixed amounts/values for the compensation (unlike the Italian case law). In addition, no private initiative has succeeded in proposing a tool to make the practice more consistent (such as in Germany).In this context, Law 132/2017 proposes legal criteria for determining certain compensations for personal injuries. But the intervention of the Romanian legislator is very general (not detailed) as opposed to other countries having very detailed regulations on the amounts granted to the victims of traffic accidents for compensating personal injuries (such as in Spain).Law no. 132/2017 only proposes the assessment of the physical pain based on traumatic points (the value of one traumatic point being equal to twice the minimum gross basic salary imposed by law at the time of the accident). Furthermore, it seems to limit the evidence of psychological trauma in case of injuries to documents (ignoring the need/utility of witnesses as evidence) and offers no criteria for the assessment of the compensation for personal injuries in case of death following a traffic accident. Even so the legal provisions are not applicable because the secondary legislation establishing the traumatic score is still missing for the time being.