Tax evasion cases are rarely lost in closing argument. They are lost much earlier, in the three weeks during which the client answered questions unassisted, “reconstructed” missing documents and rang a former employee “to clear things up”. And they are usually won on technical ground: on the figure, on the methodology of the expert report and on the lawfulness of the evidence, not on eloquence.
Any defence in an evasion case rests on one or more of three lines. They are not equivalent, and combining them comes at a cost to credibility.
The transactions were real, the documents reflect the economic reality, the goods existed, the service was performed. This line is used when the actual flow can be reconstructed through evidence: transport, stock, witnesses, payments. It is the strongest line when it holds up.
The material act exists, a failure to record, a misclassification, but the purpose of evading tax is missing. The offences under Article 9 and intent qualified by purpose require “the purpose of evading the fulfilment of tax obligations”: an accounting error, a mistaken tax interpretation, even gross negligence, are not tax evasion but a tax debt with late-payment charges (accesorii: interest and penalties).
Neither the act nor the mental element is disputed, only the figure. Statistically, this is the most productive ground, and the least used in the first months of a case.
The choice is not a free one. Arguing simultaneously “I did nothing”, “and if I did, I did not mean to” and “the figure is wrong anyway” weakens all three. The strategy is decided after reading the whole file, not on day one.
The loss is not a given. It is the result of a calculation made by someone, an anti-fraud inspector, a prosecution specialist, an expert, on the basis of a methodology that can be checked and is often disputed. And the figure decides almost everything: the legal classification, the aggravating circumstances, jurisdiction, seizures, the sentence.
A frequently disputed practice is assessing corporate income tax on gross income, without deducting the expenses actually incurred, even where documents exist. It is the economic reality that is taxed, not an accounting fiction.
When the deduction is refused, the VAT collected by the same company and paid on downstream transactions is frequently left uncompensated, a “loss” that ignores what actually reached the budget from the same taxpayer.
Where the parties did not provide for VAT, CJEU case law treats the amount received as already including VAT. The difference between applying the rate to the amount and extracting it from the amount changes the loss by more than a fifth.
A genuine, under-used dispute: interest and penalties are late-payment charges on the tax claim, not loss caused by the offence. Including them artificially inflates the figure and can push the case over the statutory thresholds.
In chains of companies, the same transaction is sometimes counted at several links, as a separate loss, typically in VAT carousel fraud cases. The state has not lost the amount three times over.
A three-month inspection, a three-year conclusion: a method of tax estimation, not a standard of criminal proof. The result of a sample is not projected onto the whole period.
The tool of the defence is a court-appointed expert report (expertiză judiciară) with a party-appointed expert, who takes part in the work and raises objections as it proceeds, not after the report is filed, a logic also set out in the analysis on evidence and expert reports in tax litigation.
This is where the most important recent change in this area took place and, as of July 2026, the principal tool of the defence. Legea nr. 126/2024 introduced into Article 10(2) of Legea nr. 241/2005 a provision with effects that the legislature probably did not anticipate: “The loss shall be determined on the basis of an expert report. The suspect or the defendant has the right to take part in the preparation of the expert report.” The text refers expressly to Articles 172 to 180 of the Code of Criminal Procedure and requires that the suspect or the defendant be notified of the order for the expert report, “giving them the time necessary to fully exercise their procedural rights”.
The prosecution offices argued that the expert report was merely a safeguard for the benefit of anyone who chooses to pay, one that could be waived, and that the loss could be established by any means of evidence, usually the anti-fraud inspector's findings report.
The High Court of Cassation and Justice (ÎCCJ) rejected this interpretation. By Decision No. 430 of 15 December 2025, given by the Panel for the Resolution of Points of Law in Criminal Matters and published in the Official Gazette No. 149 of 26 February 2026, the ÎCCJ held that, in interpreting Article 10 of Legea nr. 241/2005 as amended by Legea nr. 126/2024, the failure to prepare the specialist expert report renders the indictment irregular, which leads to the case being sent back to the prosecutor. The decision is binding from the date of publication, under Article 477(3) of the Code of Criminal Procedure.
The practical consequence is considerable: the expert report ceases to be an optional means of evidence and becomes a condition for the lawfulness of the indictment. A findings report from the tax authority does not take its place, and indictments issued without an expert report, including some drawn up between the entry into force of Legea nr. 126/2024 and the publication of the decision, are vulnerable at the preliminary chamber stage.
The effect was felt immediately: in March 2026, more than 100 prosecutors specialising in economic crime publicly called for the mandatory expert report to be scrapped, citing cost, duration and the risk of the limitation period expiring. The matter therefore remains under debate. At the time this analysis was published, Article 10(2) of Legea nr. 241/2005 is in force in the form introduced by Legea nr. 126/2024, no amendment having been adopted, and the decision of the High Court is binding.
The errors that change the outcome of a case are usually four: the wrong methodology, tax rules that do not fit the transaction or the period, ignoring the special regime that applies (second-hand goods, reverse charge, exemptions); extrapolating the results of a sample onto the whole period; disregarding supporting documents, the expert works with what has been made available, so the organised filing of documents, with an index, before the report is finalised, is a strategic obligation of the defence; and exceeding the brief, an expert who rules on intent or guilt is practising law, not expertise.
NOTE: The right to take part in the expert report does not exercise itself. If the suspect or the defendant is not notified of the order for the expert report and is not given the time needed to set objectives, propose a party-appointed expert and exercise their procedural rights, the report's very lawfulness is affected. Checking this point is one of the first steps on reading the file, and one of the most rewarding.
The preliminary chamber (Articles 342 to 348 of the Code of Criminal Procedure) reviews the court's jurisdiction and the lawfulness of the referral, of the gathering of evidence and of the criminal investigation acts. It is the stage at which unlawfully obtained evidence can be excluded (Article 102 of the Code of Criminal Procedure). What survives it stays in the file and will carry weight at trial.
Following ÎCCJ Decision No. 430/2025, its absence leads to the case being sent back to the prosecutor. It is the first question, not the last.
With notice to and summons of the parties? One carried out in breach of Articles 172 to 180 of the Code of Criminal Procedure can be challenged.
Was it carried out under a valid warrant, issued by the judge for rights and freedoms, and within its limits? Seizing goods and data outside the scope of the warrant is a question of lawfulness, not of expediency.
Servers, emails, accounting archives, were they obtained and copied in compliance with procedure and with data integrity? See also e-Factura and SAF-T (Declarația 406) as criminal evidence.
Do they respect the right to a defence and the right not to self-incriminate? The moment at which a tax inspection becomes, in substance, a criminal accusation is decisive: from that point on, criminal-law safeguards apply.
Does it describe the act precisely enough to allow the subject matter and the limits of the trial to be established? The earlier stages, in the criminal investigation in evasion cases.
There is almost always a tax file, tax assessment decision (decizie de impunere), administrative appeal (contestație), litigation, and a criminal file. They influence each other but do not overlap. The full route, in the analysis on when a tax inspection turns into a criminal file.
Suspension of the tax appeal (Article 277 of the Tax Procedure Code). The body dealing with the appeal may suspend the procedure where the inspection body has notified the competent authorities of indications that an offence has been committed in relation to the means of evidence used to establish the tax base, and a finding on that offence would have a decisive bearing on the outcome. Two limits the defence often relies on: not every criminal complaint justifies a suspension, only those concerning the means of evidence, such as forgery, use of a forged document or perjury, and only if the bearing is decisive. An unjustified suspension, dragged out for years, can be challenged, like any other stage of challenging a tax assessment decision.
The effect of a criminal judgment (Article 28 of the Code of Criminal Procedure). A final judgment of the criminal court has the authority of res judicata before the civil court as to the existence of the act and of the person who committed it. The reverse does not hold: a civil judgment does not bind the criminal authorities. In relation to tax litigation, matters are more nuanced: establishing the tax claim remains within the competence of the tax authority and the litigation court, under the rules proper to that field; the authority of the criminal judgment concerns the act and its author, not the amount of the claim, and this is an argument that must be raised expressly, not assumed.
What to watch for in parallel: consistency. The position taken in the tax appeal and the one taken in the criminal file must be compatible; an admission made to obtain a payment schedule can be read, a year later, as a confession.
Under Article 181 of the Tax Procedure Code, for obligations not declared or incorrectly declared and established by a tax assessment decision, a non-declaration penalty of 0.08% per day is owed, around 29.2% a year, increased by 100% where the principal obligations result from acts of tax evasion found by the judicial authorities. Interest is added on top of it, and then the criminal sentence.
Applying the Engel criteria of the European Court of Human Rights, a penalty of this size and with this punitive function is, arguably but seriously, criminal in nature, whatever its domestic classification. Hence the relevance of Article 50 of the EU Charter of Fundamental Rights and Article 4 of Protocol No. 7 to the Convention.
The relevant case law: CJEU, C-524/15 Menci, judgment of the Grand Chamber of 20 March 2018, the combination of administrative sanctions of a criminal nature and criminal sanctions for the same acts is permissible, but only if it pursues an objective of general interest, is clearly provided for by law, the procedures are coordinated so that the additional burden is limited to what is strictly necessary, and the overall severity remains proportionate to the seriousness of the act. How to raise it, in the analysis on invoking European Union law.
The defence's argument is not that the penalty rules out the criminal trial, but that, in sentencing, the court must take into account the tax sanction already applied, so that the whole remains proportionate. Domestic law has no explicit mechanism for coordinating the two procedures, nor any binding ruling from the supreme court or the Constitutional Court on this point. The question remains open and is worth raising, on the understanding that the outcome is not preordained.
The decision to pay. Article 10 of Legea nr. 241/2005, as amended by Legea nr. 126/2024, sets up a scale on which the price rises with time, for losses of up to EUR 1,000,000: within 30 days of the inspection being completed, the loss increased by 15%, plus interest and penalties, and the act is not punished; during the criminal investigation, +25%; at the preliminary chamber or trial stage, +50%; on appeal, +100%. Separately, paying the loss in full before the first hearing date halves the sentencing range, and later, up to a final judgment, reduces it by a third. The full mechanism, in making good the loss and the grounds for non-punishment.
The decision is not arithmetic. To pay is to accept the figure. If the loss is inflated through late-payment charges, extrapolation or double counting, paying locks in a wrong figure and closes off the tax appeal. The correct order: first check the figure, then decide whether to pay, within the limits set by the thresholds and sentencing limits in tax evasion.
The plea agreement (acordul de recunoaștere a vinovăției, Articles 478 to 488 of the Code of Criminal Procedure) can be concluded for offences for which the law provides for a fine or imprisonment of no more than 15 years. It is worth considering when the evidence is solid, the loss is certain and the sentencing benefit is real. It is not worth it when the loss is disputable, since the agreement confirms it, or when a defect in the lawfulness of the evidence can be used at the preliminary chamber stage. A signed agreement closes both doors. As for statements from former employees and whistleblower reports, they are often the backbone of the prosecution's case and, at the same time, its weak point: check for self-interest, whether the statement changed between hearings, and whether it is corroborated by documents.
The mistakes of the first week. The worst damage is usually self-inflicted: spontaneous statements made “to clear things up”, given without a lawyer; “reconstructed” documents, which turn an evasion case into a forgery case and destroy the credibility of everything else; contacting witnesses, which can amount to tampering with testimony, a stand-alone offence (Article 272 of the Criminal Code); deleting emails or files, almost always recoverable and devastating.
Do not give statements without a lawyer; the right to silence is not an admission. Preserve the documents and the data, without any intervention.
Get access and read all of it. Identify whether there is an expert report and how it was ordered.
Check the precautionary seizure (sechestru asigurător) in evasion cases and establish whether any time limit is still running in the tax file. Only then decide on the strategy.
It depends on the threshold and on the stage of the proceedings. For losses of up to EUR 1,000,000, Article 10 of Legea nr. 241/2005 provides for grounds for non-punishment conditional on paying the loss increased by 15%, 25%, 50% or 100%, depending on the stage at which payment is made, plus interest and penalties. Above that threshold, payment no longer results in non-punishment, but it can reduce the sentencing range. The figure should be checked before paying.
It is a document that can be relied on, but it does not carry the weight of an expert report and does not bind the criminal court. Following ÎCCJ Decision No. 430/2025, the loss must be determined by an expert report, and its absence leads to the case being sent back to the prosecutor.
It can be suspended under Article 277 of the Tax Procedure Code, but only if the criminal complaint concerns the means of evidence used to establish the tax base and if the criminal outcome would have a decisive bearing on it. An automatic suspension, “because there is a criminal file”, can be challenged.
Criminal liability is personal and is established on the basis of the actual contribution to the act and the mental element. An accountant who recorded documents received, without knowing the sham nature of the transactions, is in a different position from one who built the arrangement. Formal status alone does not determine liability, discussed at length in the analysis on the liability of the accountant and the director.
Informative material, updated on 18 July 2026. It does not constitute legal or tax advice; individual situations must be assessed on their own facts, and the outcome of each case depends on the facts, the evidence and the court's assessment. Every person is presumed innocent until a conviction becomes final.
If the matter involves a criminal complaint or an open file, the related analyses are grouped under economic criminal law. For how the defence is built, see tax evasion defence.
Time limits run from the date of communication. A first conversation clarifies what is being alleged, what you need to substantiate and how the defence is built, before an estimate becomes a tax assessment decision.