A shareholder who is also the director withdraws 400,000 lei from the company's account over two years. The same money, the same person, the same bank statements. Depending on three or four documents that do, or do not, exist in the file, the transaction can be: a lawful dividend distribution, taxed at 16%; a disguised distribution, reclassified by ANAF (Romania's national tax administration), with tax and late-payment charges; a loan granted by the company, repayable; or embezzlement (delapidare), an offence punished, in the mitigated form applicable to the private sector, by imprisonment from 1 year and 4 months to 4 years and 8 months. The difference does not depend on intent declared afterwards, but on the documentation contemporaneous with the act.
From the perspective of the bank flow, the three transactions are indistinguishable: money leaves the company's account for the shareholder. From a legal perspective, they are radically different, because they answer three distinct questions.
It assumes that the company made a profit and that the shareholders formally decided to distribute it. It is a right of the shareholder, arising from the general meeting's resolution.
It assumes a loan relationship. Here, the company owes the shareholder or, in reverse, the shareholder owes the company.
It assumes that the money was misappropriated, used or traded by the person who managed or administered it, without any legal basis, neither a dividend nor a loan.
The tax authority and the criminal investigation authority do not “choose” arbitrarily. Each starts from what it finds in writing: the general meeting resolution, the financial statements, the loan contract, the accounting entry. The absence of these documents is not a missing formality, in many cases it is itself the prosecution's evidence.
A dividend distribution is lawful only if four conditions are met, cumulatively. The absence of any one of them moves the transaction into a different category.
Determined in accordance with the law. Dividends are distributed exclusively from profit, not from cash receipts, not from the account balance, not from suppliers' credit.
As required by law, annual or interim, where quarterly distribution is chosen.
Approving the financial statements and allocating the profit. The resolution must exist as at the date of distribution, not be drawn up afterwards, “for the file”.
The setting-up of the statutory reserve and, under Article 691 of Legea nr. 31/1990 (inserted by Legea nr. 239/2025, in force from 18 December 2025), covering the accumulated loss carried forward. A company with current-year profit but a loss carried forward may distribute only after that loss has been covered.
Article 67(2) of Legea nr. 31/1990 allows the optional quarterly payment of dividends, on the basis of interim financial statements, with regularisation of the differences through the annual financial statements. Payment of the differences resulting from regularisation must be made within 60 days of the approval of the annual financial statements.
The mechanism has a reverse side that many entrepreneurs discover too late: if the annual profit turns out to be lower than the amount estimated quarterly, the shareholder must repay the difference. And dividends paid contrary to the statutory provisions must be repaid if the company proves that the shareholders knew of the irregularity in the distribution or, in the circumstances, ought to have known of it (Article 67(4)). The right to bring a claim for repayment is subject to a limitation period (prescripție) of 3 years from the date of distribution.
A dividend distribution made without profit, however, does not stop at repayment. Article 2721 of Legea nr. 31/1990 criminalises the act of a founder, director or legal representative who receives or pays dividends, in any form, from fictitious profits or profits that could not be distributed, in the absence of financial statements or contrary to what they show.
The 16% tax, from 2026. Under Legea nr. 141/2025 (published in the Monitorul Oficial, the Official Gazette, on 25 July 2025), the dividend tax rate rose from 10% to 16%, for dividends distributed from 1 January 2026. The tax is withheld at source and must be paid by the 25th day, inclusive, of the month following the one in which payment is made. For dividends distributed on the basis of interim financial statements drawn up during 2025, the 10% rate is retained, with no recalculation following the regularisation on the basis of the annual financial statements for the 2025 financial year.
The disguised dividend is not a standalone legal category, but the result of a reclassification. The tax authority finds that the company bore expenses for the shareholder's personal benefit, a car used exclusively privately, a holiday home, trips unrelated to the business, cash advances left unaccounted for year after year, and treats them according to their economic substance, not according to their accounting label.
Of the expense in calculating the taxable result, with additional corporate income tax and, where applicable, unadjusted VAT.
As dividend income (16% tax from 2026, plus the health contribution within the statutory limits) or as income treated as salary, if the shareholder also holds the status of employee or remunerated director, in which case social contributions apply, and are significantly more onerous.
Late-payment interest and penalties, calculated from the original due date, not from the date of the inspection.
ANAF has expressly treated sums given to shareholders as unjustified cash advances as disguised dividend distributions. In practice, “putting the invoice through the company” decides nothing: what decides it is the link between the expense and the economic activity. The evidential mechanics of these balances are set out in detail in the analysis on cash withdrawals and cash advances.
NOTE: A tax reclassification and a criminal accusation are not rungs on the same ladder, and the first does not exclude the second. A personal expense charged through the company may remain a tax dispute, but the same sum, withdrawn in cash, without a document, without a general meeting resolution and without an accounting entry, from a company with debts, is read differently by the criminal investigation authority. What separates the two worlds is not the size of the sum, but the existence of a documented legal basis contemporaneous with the transaction. No tax reclassification, by itself, establishes criminal guilt; the presumption of innocence operates in full.
A shareholder lending money to the company is a common and perfectly lawful transaction: the shareholder lends the company money, the company owes him the sum, and repayment is not taxable income, because it is not a gain but the recovery of capital. The problems lie elsewhere.
The first pitfall: the source of the money lent. If the shareholder lent the company 800,000 lei, the tax authority's natural question is where he got that money from. This is where the 70% tax on income from unidentified sources comes in (Article 117 of the Tax Code). From 6 July 2026, under Ordinul președintelui ANAF nr. 768/2026, a personal tax status review can also be carried out directly by inspectors of the General Anti-Fraud Directorate (Direcția Generală Antifraudă Fiscală). The procedure starts after a risk analysis, when the difference between estimated and declared income exceeds 10% of the declared income and is at least 50,000 lei. An unjustified loan thus becomes an involuntary declaration of wealth.
The second pitfall: the new prohibitions under Legea nr. 239/2025. From 18 December 2025, Article 67 of Legea nr. 31/1990 was supplemented with two prohibitions: companies that distribute dividends quarterly may not grant loans to shareholders or other affiliated persons until the differences arising from the dividend distributions made during the year have been settled (paragraph (23)); and companies whose, according to their approved annual financial statements, net assets have fallen below half of the subscribed share capital, may not repay loans taken from shareholders or affiliated persons (paragraph (24)).
The penalties are twofold: an administrative fine of 10,000 to 200,000 lei (with no option to pay half the minimum), and, more seriously, the joint and several liability of the company and the benefiting shareholder for the company's outstanding tax liabilities, up to the amounts lent or repaid (paragraph (25)).
The third pitfall: form and thresholds. Interest, or its absence, triggers rules on transfer pricing and income treated as such. And cash transactions remain subject to the thresholds under Legea nr. 70/2015, including on repayment: the applicable rules are those described in the analysis on the cash thresholds in 2026. The reverse situation, of the director who takes money from the company, is dealt with in the analysis on the director who borrows from the company.
Under Article 295(1) of the Criminal Code, embezzlement consists in “the misappropriation, use or trafficking, by a public official, in his own interest or for another's, of money, securities or other assets that he manages or administers”, the penalty being imprisonment from 2 to 7 years and a ban on exercising the right to hold public office. Attempt is punishable.
In the private sector, the provision applies through Article 308(1), which extends the rules on public officials to acts committed by, or in connection with, persons carrying out any kind of role “within any legal person”. The special limits are reduced by one third, that is, 1 year and 4 months to 4 years and 8 months. In Decizia nr. 1/2015, the Înalta Curte de Casație și Justiție (ÎCCJ), Romania's High Court of Cassation and Justice, held that Article 308 constitutes a mitigated form of embezzlement, and that the reduced limits are taken into account when calculating the limitation period. The constituent elements are set out in detail in the analysis on the elements of the offence of embezzlement.
If the conduct found to have occurred produced particularly serious consequences, material damage exceeding 2,000,000 lei (Article 183 of the Criminal Code), the aggravating circumstance under Article 309 of the Criminal Code becomes applicable, increasing the limits by half. That the two provisions can coexist is indirectly confirmed by Decizia CCR nr. 587/2023, by which the Constitutional Court dismissed the challenge to the constitutionality of Article 309 in conjunction with Articles 295 and 308, which itself presupposes their combined application. It must, however, be said openly: there is no decision unifying practice that expressly settles the order in which Articles 308 and 309 apply and the resulting sentencing limits. This is ground on which the defence can, and must, argue, and the figures put forward in legal writing must be treated as opinions, not as settled rules.
What turns a withdrawal into embezzlement is not the amount, nor the absence of a receipt, but the lack of any legal basis for the money leaving the company's assets, coupled with intent to misappropriate. Legea nr. 31/1990 also contains a special provision: Article 272(1)(2) criminalises the act of a founder, director or legal representative who uses, in bad faith, the company's assets or credit for a purpose contrary to its interests or for personal gain, the penalty being imprisonment from 6 months to 3 years, or a fine. Whether the relationship between this provision and Article 295 of the Criminal Code is one of concurrence of offences or of a special-general relationship is treated inconsistently in practice, in the absence of a decision unifying practice.
Its date, genuine and verifiable, is the first line of defence. A resolution drawn up after the inspection is more dangerous than its absence.
Without accounting profit, the classification as a “dividend” fails from the outset. There is no such thing as a dividend out of the account balance.
A loan contract recorded on the date of the transaction is worth ten later explanations.
Repayment does not erase the completed offence, but it matters for the mental element and for the individualisation of the sentence.
The answer to these questions is given by documents, and their technical verification is described in the analysis on accounting evidence and the expert report.
The same sums, two procedures that can run in parallel, with completely different logics. Confusing them produces costly strategic mistakes.
Tax: ANAF, tax inspection, personal tax status review.
Criminal: the judicial police and the prosecutor's office.
Tax: a tax assessment decision (decizie de impunere), a record of an administrative offence.
Criminal: an indictment and committal for trial.
Tax: tax and late-payment charges (accesorii), joint and several liability in the cases set out in Article 67(25).
Criminal: loss, precautionary seizure (sechestru asigărător), confiscation.
Tax: none on personal liberty.
Criminal: imprisonment, together with complementary and accessory penalties.
Tax: predominantly on the taxpayer.
Criminal: entirely on the prosecution, the presumption of innocence.
Tax: an administrative appeal (contestație) and tax and administrative litigation.
Criminal: the preliminary chamber, trial, and appeals.
The moment at which the first procedure triggers the second is described in the analysis on when a tax inspection becomes a criminal case, and how the sum treated as the loss is calculated, in the one on calculating the loss in an embezzlement case.
The dual role concentrates the risk. As a shareholder, the person is entitled to dividends, but only under the conditions set by law. As director, he manages and administers the company's assets, which is precisely the capacity required by Article 295 of the Criminal Code through the reference in Article 308.
Someone who signs the general meeting resolution alone, the payment order alone and the accounting entry alone combines, in the same person, the decision-maker and the person carrying it out. From the prosecution's perspective, this combination removes any internal control and, with it, any explanation along the lines of “I signed what was put in front of me”. The extreme case, of the sole shareholder, is dealt with separately, and the allocation of roles, in the analysis on the director's liability.
Check whether there is profit and whether the loss carried forward has been covered, a new condition, from 18 December 2025.
Draw up interim financial statements, and bear in mind the prohibition on granting loans to shareholders or affiliated persons until regularisation.
Not afterwards. Date it correctly. A backdated resolution turns a tax dispute into a criminal case involving several offences.
A director's remuneration has its own contract, tax and contributions. These are different regimes, not variants of the same thing.
If the company bears the cost of an asset with mixed use, document the proportion at the time of the transaction, not at inspection time.
Recorded in the accounts on the date of the transaction, with proof of the source of the money kept on file. Observe the cash thresholds and prefer a bank transfer; traceability protects you.
If old balances already exist in account 4551, or cash advances that have not been accounted for, ignoring them is not a strategy. The options, examined in order of risk, are: actual repayment of the sums; a dividend distribution with payment of the related tax, if there is profit; a voluntary reclassification as income treated as salary, with a corrective return (declarație rectificativă). Each carries a different tax cost and evidential effect, and the wrong choice can end up reinforcing precisely the prosecution's case. The analysis is done on the documents, not on general principles.
Not by itself. It is an offence only if the money leaves the company's assets without any legal basis and with intent to misappropriate, under Article 295 in conjunction with Article 308 of the Criminal Code. A withdrawal made as a lawfully distributed dividend, as repayment of a loan, or as contractual remuneration does not meet the elements of the offence. The classification depends on the documentation existing on the date of the transaction.
Not automatically. Unlike tax evasion, where Article 10 of Legea nr. 241/2005 provides for causes of non-punishment conditional on payment, embezzlement has no equivalent mechanism. Repayment remains relevant to the mental element, to settling the civil claim and to the individualisation of the sentence, but it does not, by itself, constitute a ground for removing liability.
The risk becomes more serious. A backdated document can raise the question of forgery of a private document and use of a forged document, turning a matter of tax classification into a criminal case involving several offences. The absence of a document is a weakness; fabricating it afterwards is a new offence.
Yes, the procedures are distinct and can run in parallel. They are not conditional on one another: a tax assessment decision does not bind the criminal court, and tax findings do not carry the weight of an expert report. The consistency of the positions taken in the two files is, however, essential; an admission made to obtain a payment schedule can later be used against you in the criminal case.
Three things, all in force from 18 December 2025. Dividends can no longer be distributed before the loss carried forward has been covered (Article 69¹). Companies that distribute dividends quarterly cannot grant loans to shareholders or affiliated persons until regularisation (Article 67(2³)). And companies whose net assets are below half of the subscribed share capital cannot repay loans to shareholders (Article 67(2⁴)). The penalties: a fine of 10,000 to 200,000 lei and joint and several liability for the company's outstanding tax liabilities, up to the amounts lent or repaid.
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 a judgment of 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 defence in company-law offences.
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.