The tax inspection ended with a large figure and a short remark: for three services provided, there are no supporting documents. Your accountant tells you it is nothing serious, the contracts exist, they were just never signed, because the relationship was long-standing and things ran on trust. Over the weekend you print them, sign them, date them with the year the services were provided, and file them with the appeal. From that moment on, your file has changed. Not just in scale, in kind.
You have added an offence that did not exist before, and it has nothing to do with the figure in the tax assessment decision (decizie de impunere): it has to do with the document. Forgery of documents is the satellite accusation that turns up in almost every economic file, sometimes as a reflex of the investigating bodies, other times, most seriously, because it was created in the course of the defence itself. The presumption of innocence remains the rule until a final judgment.
Forging an official document, by counterfeiting the writing or the signature, or by altering it in any way, capable of producing legal consequences: imprisonment from 6 months to 3 years. If committed by a public official in the exercise of their duties: 1 to 5 years and the prohibition of certain rights. The attempt is punishable. Essential point: material forgery is committed on a document that already exists.
Falsifying an official document, at the time it is drawn up, by a public official in the exercise of their duties, by attesting facts or circumstances that do not correspond to the truth, or by knowingly omitting to enter certain information: imprisonment from 1 to 5 years. The attempt is punishable.
Falsifying a private document by any of the methods under Article 320 or Article 321, if the perpetrator uses the falsified document, or entrusts it to another person for use, in order to produce a legal consequence: imprisonment from 6 months to 3 years, or a fine. The attempt is punishable.
Using an official or a private document, knowing it to be forged, in order to produce a legal consequence: 3 months to 3 years, or a fine, when the document is official; 3 months to 2 years, or a fine, when it is a private document.
The distinction is not academic. Article 321 requires two cumulative qualities: an official document and a public official.
An invoice issued by one company to another, the contract between two professionals, a receipt, a goods-received note, a stock card, a cash register, are private documents. The director of an SRL (societate cu răspundere limitată), the limited-liability company, and its accountant are not public officials within the meaning of Article 175 of the Criminal Code when they draw up these documents. As a result, classifying the accounting documents of a private company under Article 321 is, as a rule, wrong; the correct classification is Article 322.
The difference has a cost: 1 to 5 years against 6 months to 3 years or a fine. Under Article 322 the fine is an alternative penalty; under Article 321 it is not.
The second practical consequence follows from the structure of Article 322: merely forging a private document is not an offence. The text additionally requires that the perpetrator use it, or entrust it to someone else for use, in order to produce a legal consequence. A document wrongly drawn up and left in a drawer does not satisfy the physical element. Correspondingly, someone who forges a document and then uses it themselves does not also commit use of a forged document: the use is absorbed into Article 322.
When the company is listed, the same acts may also trigger liability for capital-market offences.
WARNING: The most common mistake after an inspection is “reconstructing” missing documents. A contract printed today and dated three years back, a receipt filled in now for an old payment, a receiving report drawn up to support a disputed expense, all of these, once filed with the case or with the tax authority, are exactly the conduct described by Article 322. The risk is not theoretical: forensic examination can establish the age of the ink and the paper, and the file's metadata remains. You have turned a discussion about deductibility, which could have been lost only at a tax cost, into a criminal accusation that could not be lost any other way.
This is the most valuable defence point on this subject.
By Decision no. 21 of 6 November 2017, given on an appeal in the interest of the law (Official Gazette no. 1024 of 27 December 2017), the High Court of Cassation and Justice held that recording, in the accounting records or other legal documents, expenses not based on real transactions, or recording other fictitious transactions, by using forged invoices and tax receipts in the name of companies that do not acknowledge the transactions or that behave, for tax purposes, like “phantom” companies, in order to evade tax obligations, constitutes the offence of tax evasion (evaziune fiscală) under Article 9(1)(c) of Legea nr. 241/2005.
The reasoning: the perpetrator's single act is specific to tax evasion, which has the character of a particular form of forgery of private documents and of use of a forged document. The special provision has an absorbing effect: forgery of private documents and use of a forged document are absorbed into the complex physical element of tax evasion, which excludes concurrent offences.
The practical consequence: if the indictment charges, for the same invoices and the same act, tax evasion concurrently with Article 322 and Article 323, the classification conflicts with a binding ruling. An application to change the legal classification is well founded. The stakes are not symbolic: it removes one offence from the calculation of concurrent offences and narrows the scope of the accusation. How the path runs from a tax finding to such a classification is described in the analysis on the tax inspection that becomes a criminal file.
Be careful of the limits of the decision. It concerns the same act, folded into the tax evasion charged under point (c). If the forgery relates to documents other than those through which the fictitious record was created, or has a purpose distinct from evading tax, for example, obtaining a loan or financing, the absorption does not apply, and concurrent offences are possible.
The question comes up in every “phantom company” file. The answer depends on your position in the chain and on the purpose being pursued.
To deduct the expense and the VAT: tax evasion, Article 9(1)(c), with the forgery absorbed, in accordance with RIL no. 21/2017.
The situation is more complex and is assessed on the actual role played; it may be complicity in the recipient's tax evasion, with a separate discussion of forgery where the act does not coincide with the fictitious recording.
For example, a fictitious invoice presented to a bank falls outside the scope of the absorption and comes within Article 322/323, possibly in concurrence with fraud.
The substantive defence, however, comes before any of these classifications: whether the transaction was real. A service that genuinely took place does not become fictitious because the supplier later disappeared, failed to declare the invoice, or had poor tax compliance. Proof of reality is built from everything that left a trace: correspondence, deliveries, minutes, receiving reports, witnesses, bank flows, the economic outcome of the transaction. Building the evidence is dealt with at length in the analysis on the defence in a tax evasion file.
The accountant who signs whatever is put in front of them is a recurring figure in these files. The rule is that criminal liability is personal and requires one's own fault. The signature, by itself, does not prove intent to mislead. What matters is what the signatory knew and what they could have checked: if they received primary documents that appeared to be in order and processed them according to the rules, their position is substantially different from that of someone who drew up invoices for services that never existed.
Symmetrically, a director who claims “I did not deal with the accounts” is not automatically cleared: they sign the financial statements and are responsible for organising the accounts. The argument only works when it is backed by facts, a real, documented delegation, and genuine unawareness of the transaction in question. The line between the two roles is examined separately, in the material on the liability of the accountant and the director.
All document forgery offences are committed with intent. There is no such thing as negligent forgery. That sentence, seemingly banal, is the substantive defence in most files.
What is not forgery: a mistaken accounting classification, the wrong application of a rule, a calculation error, an entry made in the wrong period, a differing interpretation of a complex transaction, an obvious clerical error in drafting a document. All of these can have tax consequences, additional tax, interest, penalties, without touching the mental element of the offence.
Errors are random, in both directions; forgery is one-directional and repeated, consistently serving the same interest.
Someone who corrects their errors, even late, through corrective returns (declarație rectificativă) or accounting notes, behaves differently from someone who leaves them uncorrected.
Forgery presupposes a known reality and a document that deliberately contradicts it.
An error that benefits no one is hard to read as forgery.
Documenting these elements at the right time, not at the end, is the exercise that decides the file.
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.
Digitalisation has not changed the concepts; it has changed the evidence. Three consequences.
The electronic invoice is a document. Legea nr. 126/2024 expressly extended the category of legal documents, to include invoices issued, transmitted and received through the RO e-Factura system. The same law introduced, at Article 9(1)(h) of Legea nr. 241/2005, a new offence: using the RO e-Factura system in bad faith, in order to create the appearance that fictitious transactions are legitimate, or to disguise the real transactional flow of the goods or services.
Computer forgery is a separate provision. Altering, deleting or restricting access to computer data, or entering data that does not correspond to the truth, in order for it to be used to produce legal consequences, is criminalised at Article 325 of the Criminal Code. Manipulating the ledgers in an accounting program can come into play here, a subject dealt with in the analysis on financial computer crime.
Retroactive “correction” no longer exists. Whatever you have submitted in e-Factura carries a timestamp and stays with ANAF. Reported SAF-T files keep the history. In this environment, reconstructing a “lost” document is almost impossible to hide, and almost certain to be proven, a mechanism set out in detail in the analysis on e-Factura and SAF-T as criminal evidence.
Forgery offences become time-barred faster than the host offences. Under Article 154(1)(d) of the Criminal Code, the limitation period for criminal liability is 5 years where the law prescribes imprisonment of more than 1 year but not more than 5 years for the offence committed, which is the case for Article 320(1), Article 321, Article 322 and Article 323, in all their variants. The special limitation period arises once the ordinary period is exceeded by the same length again [Article 155(4)]: 10 years.
By comparison, tax evasion under Article 9(1) of Legea nr. 241/2005, punishable by 3 to 10 years, has a general limitation period of 8 years and a special one of 16 years; the aggravated forms reach 10 and 20 years respectively. In an old file, this asymmetry can extinguish the forgery charges, leaving only the main offence standing, or, if that too is time-barred, can extinguish the whole file. Working out the date the period starts to run (the date of commission; for a continuing offence, the date of the last act) must be done document by document, not overall. The stages at which these questions actually arise are described in the analysis on the criminal investigation.
On the prior complaint. Contrary to a widespread impression, Article 322 does not require a prior complaint; paragraph (2) merely provides that the attempt is punishable. Criminal proceedings are set in motion of the court's own motion, as under Articles 320, 321 and 323. Reconciliation is not expressly provided for these offences either, so it does not apply. The “withdrawing the complaint” route does not exist here, unlike with bankruptcy or fraudulent management.
The risk is serious. The physical element of Article 322 concerns the document, not the underlying economic transaction: a document that states it was drawn up on a date on which it was not drawn up is forged, regardless of whether the underlying commercial reality existed. And using it, filing it with the appeal or with the case, completes the offence. The correct approach is to prove the service with means that reflect reality, not to fabricate the missing paperwork.
No, if it was an error. Forgery is only committed with intent; there is no such thing as negligent forgery. The consequences remain tax ones: additional tax, interest, penalties. The criminal analysis only changes if it is proved that the entry was made knowing the transaction did not exist.
If the act is single, recording expenses in the accounts with no real transaction behind them, through forged invoices, in order to evade tax obligations, ÎCCJ Decision no. 21/2017 (RIL) rules out concurrent offences: tax evasion absorbs the forgery and the use of a forged document. An application to change the legal classification is well founded. Check, though, whether the forgery charged does not in fact concern other documents, or a purpose other than a tax one.
Yes. Article 322 provides for a fine as an alternative penalty to imprisonment of 6 months to 3 years. Under Article 321, intellectual forgery, that alternative does not exist, one more reason why correctly classifying the documents of a private company matters. The choice of penalty remains, in every case, for the court, based on the general criteria for individualising sentences.
Informative material, updated on 18 July 2026. It does not constitute legal advice; individual situations must be assessed on their own facts, on the evidence in each file. Nothing in this material amounts to a promise of any particular outcome.
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.