A director receives the report referring the case to the criminal investigation bodies and reads, for the first time, the word “evasion” next to his own name. For two years, the company had deducted invoices from a consultancy supplier. The supplier, in the meantime, was declared inactive, no longer has a registered office and has not filed returns. The director says, and in many cases it is true, that the services existed and that he paid through the bank. The prosecution treats this as “fictitious transactions”. Between these two statements lies a criminal case that will last for years.
What is almost always missing from the public discussion of evasion is precisely the part that decides such cases: the law does not criminalise “any tax irregularity”, but strictly described offences, each with its own elements that the prosecution must prove. Failing to pay a tax is not, in itself, a criminal offence.
The reference provision is Article 9(1) of Legea nr. 241/2005 pentru prevenirea și combaterea evaziunii fiscale. In the form currently in force, amended by Legea nr. 126/2024 (Official Gazette No. 437 of 13 May 2024, applicable from 16 May 2024), it provides that the offences listed at points (a) to (i), committed with the purpose of evading tax obligations, are punishable by 3 to 10 years' imprisonment and a ban on certain rights, or by a fine. This last phrase is the key to the entire article.
Note also a contextual point that is often overlooked: until 16 May 2024, Article 9(1) provided for a penalty of 2 to 8 years and listed seven ways of committing the offence, from point (a) to point (g). Legea nr. 126/2024 raised the limits and added two new points. For offences committed before that date, the question of the more lenient criminal law therefore arises, a technical analysis covered separately in the article on thresholds, aggravating circumstances and penalties.
The law describes nine distinct types of conduct, which are not automatically combined: the prosecution must indicate which point applies, and why.
Not the physical concealment of an object, but keeping a source of income hidden from the tax authority's knowledge. Typical example: repeated economic activity, successive sales of real estate, ongoing online trading, never registered and never declared. This is the point with the most delicate boundary, discussed further below.
“Incomplete bookkeeping”: real receipts that never appear in the accounting records or other legal documents; the classic case is a portion of sales collected in cash and never recorded.
The mirror image of point (b): not hidden income, but invented expenses. This is the most frequent accusation in practice. Since 2024, the text expressly mentions the electronic invoice, and Article 2(c) includes an invoice issued through RO e-Factura among the “legal documents”.
Accounting records, the memory of electronic fiscal cash registers, or other means of data storage. Since 2024, the text explicitly covers electronic storage media: deleting a stock management database after a tax inspection has been announced falls under this point.
The “real” set of accounts, kept separately from the official one, in documents or other means of data storage, including electronic ones; today, this typically means a parallel stock management file.
Failing to declare, or making a fictitious or inaccurate declaration of, main or secondary business premises: a registered office at an address where the company has never actually operated, precisely so that an inspection cannot be carried out.
Substituting, damaging or disposing of assets seized under the Tax Procedure Code or the Code of Criminal Procedure, whether by the debtor or by third parties. An example is selling equipment that has been placed under seizure.
A new point, added in 2024: using the national system to create the appearance of legality for fictitious transactions, or to conceal the real transactional flow. The legislature's idea: transmitting an invoice through the official system does not “launder” a transaction that does not exist.
The second new point, added in 2024: using electronic fiscal cash registers that are not connected to the national IT system for the supervision and monitoring of tax data, or tampering with them so that data is not transmitted, or so that inaccurate data is transmitted.
Article 9 does not criminalise a mistake. All nine offences must be committed with the purpose of evading tax obligations. In technical terms, the law requires direct intent qualified by purpose: it is not enough for the act to be committed knowingly; it must be pursued specifically in order not to pay what is owed.
An expense wrongly deducted because the director believed it was deductible; a debatable VAT classification; an omission from records kept in a disorderly manner, but without any intention to hide anything. The natural outcome: a tax assessment decision (decizie de impunere), interest and penalties. This belongs to the administrative sphere.
A repeated mechanism, documents created to support a reality that does not exist, concealment, cash flows with no economic justification. This belongs to the criminal sphere.
The practical consequence is direct: an accounting error, however costly, is not a criminal offence. The burden of proof lies with the prosecution, which must prove the purpose, not merely the tax shortfall. This is precisely where the defence is built: the economic coherence of the transaction, the documents that support it, the taxpayer's prior tax conduct, and the existence of an accountant or adviser the taxpayer relied on. A large loss does not, by itself, prove intent, although in practice it is frequently treated as if it did.
WARNING: do not confuse the two levels. A tax assessment decision (decizie de impunere) through which ANAF, Romania's national tax administration, establishes additional amounts does not establish that a criminal offence has been committed, and it does not carry, in criminal proceedings, the force of a conviction. The tax authority establishes the tax facts; it does not classify the conduct under criminal law and does not decide guilt, Article 132 of the Tax Procedure Code merely obliges it to refer the matter to the prosecutor's office when it finds indications of an offence. The assessment belongs to the prosecutor, and guilt is established exclusively by the court, subject to the presumption of innocence. Conversely, amounts established for tax purposes do not automatically become “criminal loss”, and their amount is determined, under Article 10(2) of Legea nr. 241/2005, on the basis of a specialist expert report, in which the suspect or defendant has the right to participate. The point at which a tax inspection becomes a criminal case is covered separately.
This is the most important practical distinction in the whole of Article 9, and the case law of the High Court of Cassation and Justice (ÎCCJ) has shaped it with a simple logic: what the tax authority could have found out through a simple check cannot be “concealed”.
If the income was recorded in the accounts, in registered contracts or in other documents accessible to the tax authority, but was not declared, there is no concealment within the meaning of point (a); the conduct can attract, at most, tax consequences or, as the case may be, an analysis under point (b). If, on the contrary, the taxable source existed only in economic reality and nowhere else, with no record, no declaration and no official trace, the failure to declare it may be treated as concealment of the taxable source.
The example consistently used in case law: an individual who carried out property transactions that were registered in the land register and recorded with the tax administration, and who paid the tax on the transfer of property, did not “conceal” anything, the state knew of the source. That they failed to register for VAT purposes is a separate matter, which does not automatically turn into evasion.
This has been the headline accusation of the last decade, and the mechanism is always the same: the company deducted expenses and VAT on the basis of invoices issued by suppliers who, when subsequently checked, turn out to be inactive, with no employees and no ability to actually perform the service.
The law defines a fictitious transaction at Article 2(f) as “concealing reality by creating the appearance that a transaction exists when in fact it does not”. The decisive word is “not”. Not “the supplier had tax problems”, not “the price looks high”, not “the paperwork is thin”, but the transaction did not take place.
The prosecution therefore has to prove two things, not one: that the transaction did not exist in reality, and that the recipient pursued, through it, the evasion of tax obligations. The issuing supplier's tax conduct is an indication, sometimes a serious one, but it does not substitute for either of these two elements of proof. The defence works with the economic reality of the supply: the goods entered stock and were resold, the service produced an identifiable result, payment was made traceably, correspondence exists. The mechanism of VAT carousel fraud chains, and the defence available to someone caught inside such a chain, are covered separately.
A useful reference point for classification: by Decision No. 21 of 6 November 2017, delivered on an appeal in the interest of the law (Official Gazette No. 1024 of 27 December 2017), the High Court held that recording, in accounting records or other legal documents, expenses not based on real transactions, or other fictitious transactions, by using falsified invoices and receipts in the name of companies that deny the transactions or behave as “shell companies”, for the purpose of evading tax obligations, constitutes the tax evasion offence under Article 9(1)(c), without also charging, concurrently, forgery of a private document and use of a forged document. Charges that add forgery as a concurrent offence here should be challenged.
The law does not require any particular status. In practice, liability falls on those who decided and signed, usually the director, as the legal representative responsible for organising the accounts. A shareholder who does not manage the company is not liable merely for holding shares; someone who in fact runs the company, even without formally holding that position, can be liable as a de facto director. An accountant is liable only if they intentionally contributed to the evasion mechanism, not because they recorded documents received from the client; the distinction between professional error, negligence and criminal participation is covered in the article on the liability of the accountant and the director. Alongside the individual, the company can also be held liable, under Article 135 of the Criminal Code.
Penalties and limitation, in brief. Since 16 May 2024, the basic penalty has been 3 to 10 years' imprisonment and a ban on certain rights, or a fine. The limits are increased by 3 years if the loss exceeds EUR 500,000, and by 5 years if it exceeds EUR 1,000,000 (Article 9(2) and (3)). As for the limitation period for criminal liability, Article 154 of the Criminal Code gives, for the basic form of Article 9, a term of 8 years, with the special limitation period arising at double that, 16 years. However, Legea nr. 126/2024 introduced Article 10¹, under which the term “starts to run from the date the tax authority is notified or the date the criminal investigation body is notified, but no later than 10 years from the date the offence was committed”, a derogation criticised in legal commentary for its unpredictability. Being a stricter rule, it does not apply to offences committed before 16 May 2024.
This list matters just as much as the list of offences itself.
Choosing the form of organisation, the tax regime or the structure of a transaction, within the limits of the law, is not a criminal offence. It can be challenged for tax purposes, through recharacterisation or the anti-abuse rule, but that remains an administrative dispute.
When the text is ambiguous and the taxpayer has openly adopted a reasonable interpretation, the purpose of evasion is absent. The disagreement is settled in tax litigation.
If you have declared everything and simply do not have the money to pay, you are concealing nothing: what follows is enforced collection and late-payment charges (accesorii: interest and penalties), not Article 9. There is one specific exception, withholding and failing to pay amounts subject to withholding tax, which is criminalised separately under Article 6¹ of the law.
We repeat this point because it is the most important one: without the purpose of evasion, there is no offence.
The boundary between these situations and Article 9 is not always applied rigorously in practice. This is precisely why the way the administrative phase of the inspection is handled, what you state, what you document, what documents you hand over and how, and what you do not improvise, often determines whether a criminal case is even opened.
No. The supplier's inactive status mainly produces tax consequences, the non-deductibility of the expense and the VAT. For Article 9(1)(c), the prosecution must prove that the transaction did not exist in reality and that you pursued the evasion of tax obligations. The reality of the supply and good faith when entering into the contract are the elements on which the defence is built.
When the income appears in the accounts, in registered contracts or in other documents the tax authority can consult, there is no concealment within the meaning of point (a), the tax authority could have found it through a simple check. Concealment requires the taxable source to leave no official trace at all. This distinction frequently decides whether the conduct remains a tax matter or becomes a criminal one.
Not automatically. An accountant is criminally liable only if they intentionally contributed to the evasion mechanism. Recording documents received from the client, even if those documents later prove problematic, does not amount to criminal participation. Symmetrically, the director is not exonerated simply by claiming that “the accountant signed it”.
Article 10(1) provides for a ground of non-punishment: for a loss of up to EUR 1,000,000, established as such following the inspection, paying it in full, increased by 15%, plus interest and penalties, within 30 days at most of the inspection's completion, means the conduct is not punished and the competent authorities no longer refer the matter to the prosecutor's office. There are also later stages, with higher percentages, as well as grounds for reducing the sentence. The conditions are cumulative, and payment implies accepting the amount involved; the decision is taken together with the lawyer and the tax adviser, in light of how solid the findings are.
3 to 10 years' imprisonment and a ban on certain rights, or a fine. The limits are increased by 3 years if the loss exceeds EUR 500,000, and by 5 years if it exceeds EUR 1,000,000. Be careful with outdated sources: the 2 to 8 year form, with thresholds of EUR 100,000 and EUR 500,000, was in force up to and including 15 May 2024, and remains relevant only when analysing the more lenient criminal law.
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 until a final judgment.
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.
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.