I am writing this as a lawyer, for fellow lawyers. We all know the scene: you have argued a plea of nullity flawlessly, built a solid procedural defence, and the client is convicted anyway on a figure you could not challenge, because you had nothing to challenge it with. A lawyer who is good on procedure but has no technical support on the figure loses exactly where the case is decided.
In a tax evasion case or in tax litigation, what is at stake rests on the tax base and on the calculation methodology. This is not ground that legal training, however good, covers on its own.
Knowing that interest and penalties are not part of the criminal loss is a legal question. Demonstrating, on the accounting records and the actual flow of funds, that the sum relied on by the prosecution includes late-payment charges, double-counts transactions or extrapolates a sample, is a matter of expert analysis. A lawyer who tries to do both ends up making statements they cannot prove technically. The court does not accept “submissions” on a figure; it accepts expert conclusions, corroborated by documentary evidence. The party-appointed tax expert is the one who produces that evidence and holds it up at the hearing.
One example: a loss presented as having a certain value may in fact include the principal debt plus interest and penalties accumulated over years, late-payment charges that are not sums taken through the offence. Add to that the extrapolation of a sample of a few months over the whole period and the refusal to offset the output VAT collected and paid on downstream transactions, and the figure in the indictment can end up substantially higher than the real debt evaded. None of this is visible without an expert, and each component can move the case above or below a threshold. We cover the substantive lines of defence in the analysis on the defence in a tax evasion case.
The concrete way in which the lawyer and the expert work together on the same case is covered separately.
For the lawyer, a technical distinction often decides the first line of attack. The loss can be established through three routes with different evidential value.
Drawn up on an urgent basis by a specialist from the criminal investigation body or the tax authority (Article 172 the Code of Criminal Procedure); useful, but without the adversarial guarantees of an expert report.
It is ordered with set objectives, with an expert appointed, and with the parties' right to take part and to recommend an expert. We set out its technical role in criminal cases in detail in the tax expert in a criminal case.
Acceptable administratively, but it is not a standard of criminal proof. A figure on which criminal liability depends cannot rest on an estimate alone.
In tax evasion cases, after ÎCCJ Decision no. 430/2025 (Official Gazette no. 149 of 26 February 2026), the loss can no longer rest on a mere findings report: failing to draw up the specialist expert report renders the indictment irregular and leads to the case being sent back to the prosecutor. The first question I put to the expert when reading the file is exactly this: what does the figure rest on, a findings report, an expert report or an estimate? The answer shapes the whole strategy.
The collaboration only works if the roles are kept sharply separate. They do not mix, and neither substitutes for the other.
The legal classification, nullities and the exclusion of evidence, the lawfulness of the referral and of the investigative acts, procedural strategy, managing time limits, the relationship with the client and the closing argument. It is also the lawyer who decides the architecture of the defence and turns the technical conclusion into a legal argument.
The calculation methodology, the tax base, recalculating the loss, identifying errors in the official expert report or in the findings report, formulating the technical objectives, the observations made during the expert examination and, where appropriate, a counter expert report. The expert does not plead, does not rule on guilt and does not decide strategy.
The rule, stated simply: the expert does not calculate guilt in the court's place, and the lawyer does not calculate the loss in the expert's place. Each stays within their own competence, and the combined result is stronger than the sum of the parts.
If the file contains a calculation that needs checking, the other analyses are grouped under the party-appointed tax expert. For the technical role in the defence, see tax expert evidence.
The most common and most costly mistake in this collaboration is bringing the expert in late, at the hearing on the merits, after the court-appointed expert evidence has already been produced without the defence's objectives and without a party-recommended expert. The right moment is when you take on the file. The expert reads the file together with the lawyer and, together, you establish:
How the loss was calculated: a findings report, an expert report, or an estimate.
Whether a specialist expert report was ordered, and how. We discuss establishing the loss at the investigation stage in the criminal investigation in tax evasion cases.
What technical objectives should be proposed for the court-appointed expert evidence.
Whether it is necessary to recommend a party-appointed expert to take part in the work.
What supporting documents should be filed, with an inventory, before the report is finalised.
An expert brought in on time shapes the evidence. An expert brought in late only comments on evidence that is already closed.
This is where cases are most often won or lost. An expert report answers the objectives it is set, nothing more. Whoever formulates the objectives steers the conclusion.
“Whether the company committed tax evasion” is not an objective for an expert report; it is a question of law, which the expert is not allowed to answer. The objective must be technical and narrowly framed: the amount of output and deducted VAT; whether supporting documents exist for the rejected expenses; whether the base includes late-payment charges; whether the same transaction was counted more than once.
An objective phrased as “to confirm the loss established by the inspection report” already assumes the outcome. The defence must propose neutral objectives that allow the expert to recalculate from scratch, not to validate a given figure.
Formulating the objectives is a joint operation: the lawyer ensures legal relevance, the expert ensures technical correctness. A poorly framed objective cannot easily be fixed once the report has been filed. We cover the technique of raising objections to a report already filed separately.
The rules on expert reports in criminal proceedings (Articles 172 to 181 the Code of Criminal Procedure) give the defence rights that are too rarely used. The party can propose objectives (Article 172 the Code of Criminal Procedure) and can ask for an expert it recommends to take part in producing the expert report (Article 173 the Code of Criminal Procedure). In tax evasion cases, the right to take part in the specialist expert report is expressly provided by Article 10 of Legea nr. 241/2005, as amended by Legea nr. 126/2024. When the expert report is incomplete, a supplementary report is requested (Article 180 the Code of Criminal Procedure); when the conclusions are unclear, a new expert report can be obtained (Article 181 the Code of Criminal Procedure). We develop the expert's technical role in the analysis dedicated to the criminal case.
Where the Code of Civil Procedure applies as the general law, Article 330(5) the Code of Civil Procedure offers an underused tool: experts chosen by the parties and approved by the court can take part in producing the court-appointed expert evidence, holding the status of party advisers. They can supply information, put questions and observations, and draw up a separate report. The party does not sit by passively; it appoints a specialist who accompanies the process, corrects it from within and leaves its own technical position in the file. We detail the evidence in tax litigation in the evidence in tax litigation.
A favourable expert report does not defend itself. The court has to read it through the filter of the legal argument that only the lawyer builds. The expert establishes that the real loss is smaller; the lawyer shows what that means for the legal classification, for the thresholds, for sentencing, and, where relevant, for making good the correctly calculated loss. The expert shows that an expert report was produced without notifying the party; the lawyer turns that finding into an application to exclude it or to have it redone.
Coordination means the two roles communicate constantly, not only when the report is filed. The lawyer explains to the expert the legal stakes of each objective; the expert explains to the lawyer what can and cannot be proved technically. A technical conclusion the lawyer does not understand cannot be argued in court, and a legal stake the expert is unaware of cannot be covered by the objectives. The same coordination makes the difference when what is at stake also involves invoking European Union law.
Who advances the fee. The fee of the party-recommended expert, or of the party adviser, is usually advanced by the client who requests the participation. In tax litigation, these costs can be included among the costs of proceedings, recoverable in the end from the losing party. This is a discussion the lawyer must have transparently with the client from the outset, as part of the cost-benefit analysis of the defence.
Confidentiality and privilege. The lawyer benefits from professional secrecy (secretul profesional). Engaging the expert through the lawyer, as part of the defence team, gives the communications practically better protection than a direct client-expert relationship, because it places the exchange of information within the preparation of the defence. It must, however, be said honestly: Romanian law does not enshrine an Anglo-Saxon-style “litigation privilege” that would automatically and unconditionally extend the lawyer's professional secrecy to the expert. As at 18 July 2026, the matter remains without a single, explicit set of rules, so protection of lawyer-expert communications is secured in practice, by placing them within the perimeter of the defence, not through an absolute legal guarantee; caution requires sensitive matters to be handled with this limitation in mind.
NOTE: The typical errors in this collaboration have nothing to do with the expert's competence, but with how the expert is used. Three recur: (1) the expert left to work alone, with no legal briefing, produces a report that is technically correct but strategically irrelevant; (2) weak objectives, general ones, or ones framed so as to confirm the prosecution's figure; (3) bringing the expert in late, after the court-appointed expert evidence has been produced without the defence taking part. All three are avoidable, and all three frequently decide the fate of the case.
You can build the legal argument, that late-payment charges are not part of the loss, that an estimate is not criminal proof, but you cannot prove it technically. The court accepts expert conclusions corroborated by documentary evidence, not unqualified submissions on accounting and tax methodology. Technical support does not replace you; it gives you the evidential foundation you are missing.
When you take on the file, not at the hearing on the merits. Only then can you still propose objectives, recommend a party-appointed expert to assist with the court-appointed expert evidence, and file the supporting documents before the report is finalised. Brought in late, the expert only comments on evidence that is already closed.
The court-appointed expert is appointed by the court and draws up the official report. The party adviser is the expert chosen by the party and approved by the court, who takes part in producing the expert evidence, raises questions and observations, and can draw up a separate report on the objectives. It is the tool through which the party does not sit by passively during the expert examination, but corrects it from within.
In tax litigation, the costs of the party adviser's participation can be included in the costs of proceedings and recovered from the losing party. In criminal proceedings, the regime is different and depends on the outcome of the case. In both situations, the discussion about who advances the cost and when it is recovered must be had with the client from the outset.
Informative material, updated on 18 July 2026. It does not constitute legal or tax advice; individual situations must be assessed on their own facts. Every person is presumed innocent until the conviction becomes final.
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.