In a tax criminal case, a single figure decides almost everything: the loss. Its size determines the legal classification, the aggravating circumstances, the sentencing limits, the possibility of avoiding liability by payment, and even which prosecutor's office handles the case. And yet, at the start of the file, this figure is only the prosecution's estimate, taken from an inspection report and treated as final. It is not. The party-appointed expert disputes it, not the guilt, which is not for the expert to determine, but the amount.
The loss is not a mere consequence of the offence; it is the parameter that shapes the case on three levels. Whoever treats the prosecution's figure as fixed and unchangeable gives up, from the start, the most important ground.
Article 9 of Legea nr. 241/2005, as amended by Legea nr. 126/2024, ties the severity of the offence to thresholds: above 500,000 euros, the sentencing limits increase by 3 years; above 1,000,000 euros, by 5 years. A figure that does, or does not, cross the threshold moves the case into a different risk category, set out in detail in the analysis on the thresholds and sentencing limits in tax evasion.
Legea nr. 126/2024 reshaped Article 10: paying the loss, on the conditions and within the time limits set out, can lead to exemption from punishment or to reduced sentences. But the “loss” you pay is exactly the figure at issue, see covering the loss and the benefits under Legea nr. 126/2024.
The allocation of tax evasion cases among prosecutor's offices depends, among other things, on the amount of the loss: large-scale cases, above the value threshold set by law for the National Anticorruption Directorate (DNA), whose jurisdiction is governed by OUG nr. 43/2002, fall under its jurisdiction. A figure that does, or does not, cross the threshold can change which prosecutor's office handles the case.
In a tax criminal case, two calculations face off: the prosecution's, built on the tax authority's report, and the defence's, built through expert evidence. The differences are not of nuance, but of method, and they cluster around four points that recur in almost every case. The same patterns appear in how the loss is calculated and challenged in other economic offences.
The loss caused by tax evasion is the tax or duty evaded, the principal debt. Accessories (interest, penalties) are an administrative consequence of non-payment; they are not part of the subject matter of the offence. Separating them out can, by itself, bring the figure below an aggravation threshold.
VAT has two sides, output and input, and the real loss is the difference between them. Double counting is common: the same transaction generates a loss for VAT and, separately, another for corporate tax, on the same base. The expert redoes the calculation on the economic substance, not by mechanical addition.
The prosecution tends to treat the entire value of the fictitious invoices as the loss; the defence shows that the loss is the actual tax advantage obtained through that scheme (Article 9(c)). The difference can be several times over. This is where it intersects with fictitious transactions and forgery of documents.
The authority checks a month or a quarter, finds an irregularity, and projects the percentage across the whole period. In criminal matters, where the loss must be established with certainty, not by probability, such a projection is vulnerable: it produces a plausible figure, not a proven one.
In short, the party-appointed expert attacks three things: methodology (what method was used and whether it is legally correct), input data (whether the starting figures are real, complete and correctly classified), and assumptions (what the authority presumed where it did not prove). The expert does not dispute that a tax is owed, if it is owed; the expert disputes how the amount that triggers the criminal consequences was calculated.
It is the same technical discipline used in the calculation in a personal tax situation review: a work of reconstruction, not of rhetoric, and that is precisely why it convinces.
Since 2026, the dispute has a new and powerful procedural framework. Through Decizia nr. 430/2025, handed down on 15 December 2025 by the Panel for the Resolution of Points of Law in Criminal Matters of the High Court of Cassation and Justice (ÎCCJ) and published in Monitorul Oficial nr. 149 of 26 February 2026, it was held that, in interpreting Article 10 of Legea nr. 241/2005 as amended by Legea nr. 126/2024, failure to draw up the specialist expert report renders the document referring the case to the court irregular, which results in the case being sent back to the prosecutor. The decision is binding from the date of publication (Article 477(3) of the Code of Criminal Procedure).
The consequence is considerable: the loss can no longer be established just any way, it must be determined through a specialist expert report, and the suspect or defendant has the right to take part in preparing it. A mere findings report from the prosecutor's office or the tax authority does not stand in for expert evidence. Indictments based only on a findings report are vulnerable at the preliminary chamber stage, and it is the party-appointed expert who demonstrates this gap, technically, through objections to the report and, if needed, a counter-expert report.
A technical document from the prosecution (the Antifraud unit or a specialist attached to the prosecutor's office), useful during the investigation stage, but one-sided: the party does not take part in preparing it and cannot raise objections while it is being drawn up. It is the piece covered in the criminal investigation and the weight of the tax findings report.
It is ordered by the judicial body, carried out by an expert with the parties entitled to take part, and can be accompanied by an expert-adviser for the defence. After Decizia nr. 430/2025, a findings report is no longer enough to determine the loss, expert evidence is required.
Treating the two as equivalent is a mistake the defence can turn to its advantage.
If the matter involves a criminal complaint or an open file, the related analyses are grouped under economic criminal law. For how such charges are handled, see defence in tax evasion cases.
This is not a figure of speech. A correct recalculation, one that separates the debt from the accessories, removes the double counting of VAT, reduces fictitious transactions to the real tax advantage, and strips out extrapolations, can reduce the loss to a fraction of the initial figure. Sometimes enough to drop below an aggravation threshold; other times enough to change jurisdiction; occasionally, when the calculation base was wrong from the ground up, by almost the whole amount. Not because the offence “disappears”, but because it is brought back to its real size.
The recalculation has a direct effect on the most important practical decision: whether and how much you pay. Legea nr. 126/2024 ties major benefits to covering the loss, but it only makes sense to pay the correct figure, not an inflated one. A taxpayer who pays an overstated loss pays the state more than is owed, with no way back. The first decision is not whether you pay, but what you pay.
The lawyer and the expert work on two complementary levels. The lawyer deals with nullities and procedural defects, including the absence of the specialist expert report, which, after Decizia nr. 430/2025, can result in the case being sent back to the prosecutor. The expert deals with the figure, the methodology, the data and the assumptions behind the calculation. The two support each other: a nullity buys time and can send the case back, while a recalculation changes what is at stake on the merits. The complete coordination is part of the lines of defence in a tax evasion case.
Note, the expert determines the amount, not the guilt. A recalculation that reduces the loss does not “prove innocence”, nor does it rule it out, these are separate matters. Guilt is assessed by the court, in keeping with the presumption of innocence, which applies to everyone until a final conviction; the amount is a technical matter, of method and evidence.
Confusing the two harms the defence: a figure challenged properly does not need to claim more than it can show, namely that the real loss differs from the one in the indictment.
Because the loss caused by tax evasion is the tax or duty actually evaded, the principal debt. Interest and penalties are accessories calculated administratively for late payment; they are not part of the subject matter of the offence. Including them artificially inflates the figure that triggers the aggravation thresholds and the benefits linked to covering the loss. Separating the debt from the accessories is usually the first correction the expert makes.
It is a means of evidence, but it does not have the force of expert evidence and does not bind the court. Following Decizia ÎCCJ nr. 430/2025, the loss in tax evasion cases must be determined through a specialist expert report, which the party is entitled to take part in preparing. An indictment based only on a findings report, without expert evidence, risks the case being sent back to the prosecutor at the preliminary chamber stage.
Because you pay the figure you accept. The benefits under Legea nr. 126/2024 are obtained by covering the loss, but if the figure is overstated, you pay more than you owe, permanently. A correct recalculation establishes exactly what needs to be covered; only then does the decision to pay become rational. The first question is not “whether”, but “how much”.
It means that, under the interpretation given by ÎCCJ in Decizia nr. 430/2025, the loss must be established through a specialist expert report, and the absence of this report renders the document referring the case to the court irregular, resulting in the case being sent back to the prosecutor. It is not a formality: it is a condition for the lawfulness of committal for trial, which the defence can invoke.
Informative material, updated on 18 July 2026. It does not constitute legal or tax advice; individual situations must be assessed on their own facts. The presumption of innocence applies to everyone until a final conviction; the expert determines the amount of the loss, not the guilt.
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.