Editura Universul Juridic Tax evasion. A legal-economic approach - Ana-Maria Tatoiu

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Publisher: Universul Juridic

Author: ANa-Maria Tatoiu

Pages: 412

Publisher year: 2020

ISBN: 978-606-39-0635-0

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Tax evasion is a subject of multidisciplinary study, requiring a complex scientific treatment that involves the approach both from a legal perspective, and from a fiscal, economic and financial perspective. Regardless of the number and volume of taxes and duties, we find tax evasion, in different proportions, in a multitude of states. Therefore, the issue addressed is of undoubted theoretical and practical utility.

The originality of this paper consists in the particular, personal approach of some consecrated subjects, which are related to the theoretical essence, but also to the practice of this institution of analysis. The angles of approach are complex. Wanting to mark historical perspectives, but also current ones, he emphasizes the relevant aspects of the study topic from the perspective of our country, as a priority, but also from the level of the community space and not only.

The practical relevance of the paper is identified in the chapter on Recent Judicial Practice of tax evasion offenses, which presents summaries of recent jurisprudence of national courts on tax evasion, as well as related offenses provided by Law no. 241/2005. It presents a collection of court decisions from 2010-2017, which provides an overview of the main legal issues generated by solving the cases regarding the tax crime.

The paper is addressed to lawyers and economists alike. It sums up ample information deriving from the scientific analysis and aims to harmoniously combine, in a unitary whole, the legal and economic fields. In Romania, a country ground for years by the phenomenon of tax fraud, solutions should be sought and, especially, identified and implemented to remedy this problem. For these reasons, the study topic is of real interest for the evolution of the legislative process and for the legal practice in the field. Last but not least, the paper addresses business people, who, from the wealth of information analyzed, can have a clear representation of the demarcation line (thin, by the way) between tax optimization, a specific element of business management, and tax evasion, with inherent criminal consequences.

Starting from the idea that tax evasion is a scourge that affects the economies of modern societies and causes important and undesirable distortions in the proper functioning of the market economy, Ms. Anamaria Tatoiu makes a complete analysis, theoretical and practical, of this phenomenon.

The analysis begins with the definition of the concept of tax evasion and the presentation of the current legal regime of tax evasion crimes and related crimes. Subsequently, the concrete ways of evading the fulfillment of fiscal obligations and the most used criminal schemes in tax fraud are investigated.

In the second part of the paper, the author examines the recent judicial practice both in the matter of the actual crimes of tax evasion, and in the matter of the crimes related to the crimes of tax evasion. Also, a series of comparative analyzes of national legislations are carried out in order to capture the way in which the legislator from different countries understands to fight the phenomenon of tax evasion.

At the end, a series of proposals are formulated to streamline the process of combating tax evasion in Romania. The author talks about the need for a profound reform at the state level, showing that in a first stage "the essential problems of the entire Romanian economy must be solved, and when the systems that make up the whole society will become functional and the problem of tax fraud can be controlled therefore low ”.
Bogdan Bucatariu
  • Tax evasion. A legal-economic approach - Ana-Maria Tatoiu

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LIST OF ABBREVIATIONS / 11
CHAPTER I. INTRODUCTORY NOTIONS REGARDING TAX EVASION / 15
The concept of tax evasion / 15
Classification of tax evasion / 24
Causes of tax evasion / 35
Legislative history of tax evasion in our country / 44
CHAPTER II. CURRENT ROMANIAN LEGAL REGIME OF TAX EVASION OFFENSES / 49
The general presentation of the tax evasion regulations from Law no. 241/2005 / 49
The common characteristics of the tax evasion crimes proper / 52
Analysis of tax evasion crimes / 61
Hiding the taxable or taxable source, the crime provided by art. 9 para. (1) lit. a) / 61
The omission of highlighting the commercial operations, the crime provided by art. 9 para. (1) lit. b) / 66
Highlighting fictitious operations, the crime provided by art. 9 para. (1) lit. c) / 77
Alteration, destruction or concealment of accounting documents, the crime provided by art. 9 para. (1) lit. d) / 82
Execution of double accounting records, the crime provided by art. 9 para. (1) lit. e) / 88
The evasion from performing the financial verifications, the crime provided by art. 9 para. (1) lit. f) / 94
Replacement, degradation or alienation of legally seized goods, the crime provided by art. 9 para. (1) lit. g) / 102
Aggravated variants of tax evasion offenses / 107
CHAPTER III. OFFENSES RELATED TO TAX EVIDENCE OFFENSES / 108
Common characteristics of the crimes regulated by art. 3-8 of Law no. 241/2005 / 108
Analysis of related tax evasion crimes / 110
The refusal to restore the destroyed accounting documents, the crime provided by art. 3/110
The refusal to present the legal documents and the goods from the patrimony, the crime provided by art. 4/115
Preventing the performance of financial, fiscal or customs checks, the offense provided by art. 5/119
Intentional withholding and non-payment of taxes and contributions with withholding tax, the offense provided by art. 6/123
Printing, possession or putting into circulation of stamps, banners or standardized forms, the crime provided by art. 7/124
Unlawful reimbursements, refunds or compensations, the crime provided by art. 8/129
CHAPTER IV. CAUSES OF UNPUNISHMENT, PROHIBITIONS AND DECLINATIONS / 134
Terminological and historical clarifications of the causes of impunity and the causes of reduction of punishments / 134
Legal conditions for the causes of impunity and for the application of the causes of reduction of punishments / 139
Consequences of causes of impunity and causes of reduction of punishments / 141
The current provisions of Chapter III of Law no. 241/2005 regarding the taking of precautionary measures and the regulation of incapacities / 142
CHAPTER V. CONCRETE FORMS AND METHODS OF REMOVAL FROM THE FULFILLMENT OF FISCAL OBLIGATIONS. INFRINGEMENT SCHEMES / 146
Ways to evade the payment of fiscal obligations / 149
Abolition, in totality, from the payment of the obligations due to the state budget / 152
Criminal evasion schemes from fulfilling tax obligations through "ghost" companies / 152
Carousel fraud type scheme / 162
Tax evasion through offshore companies / 170
Crime schemes for evading the fulfillment of fiscal obligations through excisable products / 172
Other criminal schemes for evading the fulfillment of fiscal obligations / 173
Import operations using customs procedure 42/173
Cash & carry tax fraud / 178
Fiscal evasion through the insolvency method / 179
Partial evasion from the payment of obligations due to the state budget / 180
Introductory remarks / 180
Fraud the margin / 182
Legal diminution of fiscal obligations / 185
Trade in conventions / 185
Transfer prices / 187
Double taxation conventions / 190
Erosion of the taxable base / 193
Lack of access to information / 194
CHAPTER VI. ASPECTS OF CRIMINAL PROCEDURAL LAW REGARDING THE CRIME OF TAX EVASION / 196
Peculiarities of the criminal investigation in the case of the crime of tax evasion / 196
Evidence, means of proof and evidentiary procedures in the criminal proceedings specific to the crime of tax evasion / 207
Probele / 207
6.2.2 Evidence and evidence / 211
Hearing persons / 211
Theoretical considerations / 211
6.2.3.2. Statements of the suspect, defendant, injured party and witness / 215
Identification of persons and objects / 220
Special methods of surveillance or research
Technical supervision: interception of communications or any type of remote communication. access to a computer system. Video, audio or photography surveillance. Location or tracking by technical means / 223
Special research methods / 225
Obtaining data on a person 's financial transactions / 225
Financial-banking transactions / 228
Ways and toolsbank payment / 229
Accounts and account statements. identification of bank accounts of non-resident legal entities / 233
Ways of performing banking operations. Online operations / 234
Fictitious financial circuits / 236
Obtaining data on the financial situation / 238
Computer data preservation / 240
Procedures for discovering and collecting documents and means of payment / 244
General considerations / 244
Perchezitia / 245
Lifting objects and documents / 249
On - the - spot research / 251
Expertise and finding / 253
Means of evidence and documents / 259
Material means of proof / 259
The documents / 259
Fiscal documents / 261
Bank documents / 262
Accounting documents / 263
Commission rogatory and delegation / 268
Procedural measures / 272
Terminological considerations / 272
Insurance measures and confiscation. establishing the patrimonial situation, evaluating and taking precautionary measures / 274
Criminal prosecution of the legal person / 279
Specific procedural aspects in the trial procedure of tax evasion offenses / 285
Particularities of the trial in criminal cases regarding tax evasion deeds / 285
Solving the civil action within the criminal cases of fiscal evasion / 286
CHAPTER VII. JUDICIAL PRACTICE IN THE MATTER OF TAX EVASION OFFENSES / 288
The jurisprudence of the Romanian courts regarding the actual crimes of tax evasion / 288
Cases from the jurisprudence of the national courts regarding the crime of tax evasion provided by art. 9 para. (1) lit. a) of Law no. 241/2005 / 288
Cases from the jurisprudence of the national courts regarding the crime of tax evasion provided by art. 9 para. (1) lit. b) of Law no. 241/2005 / 303
Cases from the jurisprudence of the national courts regarding the crime of tax evasion provided by art. 9 para. (1) lit. c) of Law no. 241/2005 / 311
Cases from the jurisprudence of the national courts regarding the crime of tax evasion provided by art. 9 para. (1) lit. d) of Law no. 241/2005 / 322
Cases from the jurisprudence of the national courts regarding the crime of tax evasion provided by art. 9 para. (1) lit. e) of Law no. 241/2005 / 325
Cases from the jurisprudence of the national courts regarding the crime of tax evasion provided by art. 9 para. (1) lit. f) of Law no. 241/2005 / 329
Cases from the jurisprudence of the national courts regarding the crime of tax evasion provided by art. 9 para. (1) lit. g) of Law no. 241/2005 / 336
Cases from the jurisprudence of the national courts regarding the aggravated variants of the tax evasion crimes / 341
Judicial practice regarding crimes related to tax evasion crimes in Romania / 342
Romanian judicial practice regarding the crime provided by art. 4, the refusal to present the legal documents and the patrimony goods / 346
Romanian judicial practice regarding the crime provided by art. 5, preventing the performance of financial, fiscal or customs checks / 351
Romanian judicial practice regarding the crime provided by art. 6, intentional withholding and non-payment of taxes and contributions with withholding tax / 354
Romanian judicial practice regarding the crime provided by art. 7, printing, holding or putting into circulation stamps, banners or standardized forms / 355
Romanian judicial practice regarding the crime provided by art. 8, illegal reimbursements, refunds or compensations / 358
CHAPTER VIII. COMPARATIVE ANALYSIS OF NATIONAL LAWS REGARDING TAX EVIDENCE OFFENSES / 363
Community regulations on the crime of tax evasion / 363
Elements of comparative law on tax evasion in the Member States / 368
Relevant aspects regarding the regulations for sanctioning the crime of tax evasion in the legislation of other countries of the world / 379
CHAPTER IX. CONCLUSIONS AND PROPOSALS FOR LAW FERENDA / 382
BIBLIOGRAPHY / 397

Tax evasion is a subject of multidisciplinary study, requiring a complex scientific treatment that involves the approach both from a legal perspective, and from a fiscal, economic and financial perspective. Regardless of the number and volume of taxes and duties, we find tax evasion, in different proportions, in a multitude of states. Therefore, the issue addressed is of undoubted theoretical and practical utility.

The originality of this paper consists in the particular, personal approach of some consecrated subjects, which are related to the theoretical essence, but also to the practice of this institution of analysis. The angles of approach are complex. Wanting to mark historical perspectives, but also current ones, he emphasizes the relevant aspects of the study topic from the perspective of our country, as a priority, but also from the level of the community space and not only.

The practical relevance of the paper is identified in the chapter on Recent Judicial Practice of tax evasion offenses, which presents summaries of recent jurisprudence of national courts on tax evasion, as well as related offenses provided by Law no. 241/2005. It presents a collection of court decisions from 2010-2017, which provides an overview of the main legal issues generated by solving the cases regarding the tax crime.

The paper is addressed to lawyers and economists alike. It sums up ample information deriving from the scientific analysis and aims to harmoniously combine, in a unitary whole, the legal and economic fields. In Romania, a country ground for years by the phenomenon of tax fraud, solutions should be sought and, especially, identified and implemented to remedy this problem. For these reasons, the study topic is of real interest for the evolution of the legislative process and for the legal practice in the field. Last but not least, the paper addresses business people, who, from the wealth of information analyzed, can have a clear representation of the demarcation line (thin, by the way) between tax optimization, a specific element of business management, and tax evasion, with inherent criminal consequences.

Starting from the idea that tax evasion is a scourge that affects the economies of modern societies and causes important and undesirable distortions in the proper functioning of the market economy, Ms. Anamaria Tatoiu makes a complete analysis, theoretical and practical, of this phenomenon.

The analysis begins with the definition of the concept of tax evasion and the presentation of the current legal regime of tax evasion crimes and related crimes. Subsequently, the concrete ways of evading the fulfillment of fiscal obligations and the most used criminal schemes in tax fraud are investigated.

In the second part of the paper, the author examines the recent judicial practice both in the matter of the actual crimes of tax evasion, and in the matter of the crimes related to the crimes of tax evasion. Also, a series of comparative analyzes of national legislations are carried out in order to capture the way in which the legislator from different countries understands to fight the phenomenon of tax evasion.

At the end, a series of proposals are formulated to streamline the process of combating tax evasion in Romania. The author talks about the need for a profound reform at the state level, showing that in a first stage "the essential problems of the entire Romanian economy must be solved, and when the systems that make up the whole society will become functional and the problem of tax fraud can be controlled therefore low ”.
Bogdan Bucatariu

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