The audit has begun, and the ANAF team requests, in writing, the transfer-pricing file. If your Romanian subsidiary belongs to a group and has transactions with the parent, but the file does not exist, from that moment you no longer control the conversation. The fine many believe to be the main consequence is, in fact, the smallest problem. The real risk is that ANAF reserves the right to set the "market" prices itself — ex officio, on the data it holds, usually against the taxpayer.
The file is not, as a rule, filed together with the returns (the exception being large taxpayers, who under OPANAF 828/2026 submit it annually through the Virtual Private Space). For everyone else, it is presented at the request of the tax authority, in the course of an audit.
The request is in writing, and the deadline for presentation is fixed and short, running from the moment the request is communicated. The deadline can, in principle, be extended on request, under the tax-procedure rules — but an extension is not an automatic right and does not solve the underlying problem: you cannot "extend" a file that requires a functional analysis, the choice of method and a benchmarking study. An extension buys time to gather existing documents, not to build from scratch documentation the law required from the moment of the transaction.
Failure to present the file, or presenting it incomplete, is an administrative offence. The penalty is set by the Tax Procedure Code and varies by category of taxpayer — higher for large and medium taxpayers, lower for the rest. On the scale of a group with intra-group transactions worth millions, these amounts are, of course, modest.
That is why the fine does not, in itself, deter failure to prepare the file — and why focusing exclusively on it is a misreading of the risk. The fine is only the "entry ticket"; the real cost comes from what follows.
Where the taxpayer does not make available the data needed to verify compliance with arm's length, the authority may estimate the amount of income or expenses. The basis is Article 106 of the Tax Procedure Code, read together with the procedure in OPANAF 828/2026.
The mechanism is simple to describe and harsh in its effects: ANAF no longer discusses the method and the comparables with the taxpayer — because the taxpayer did not provide them; the authority builds its own analysis, on the data it holds; the taxpayer's result is positioned at the central tendency of the market — in practice, the median of the comparison range; and the difference between the achieved margin and the median becomes additional taxable base, for each open fiscal year.
Positioning at the median is the key to the financial effect. When the taxpayer prepares its file, it can show that it falls anywhere between the lower and the upper quartile — that the price is arm's length even at the lower edge. When ANAF makes the estimate, the reference point rises to the middle of the range, and everything below the median turns into additional income.
The information imbalance makes matters worse: the estimate may rely on data the authority holds but the taxpayer cannot consult in full. An estimate built this way is presumed correct until the taxpayer rebuts it — and rebuttal usually requires precisely the file and the benchmarking study the taxpayer did not have at the time of the audit. The circle closes against the unprepared.
An incomplete file is treated as a file not presented. Under OPANAF 828/2026, the absence of the description of transactions, the functional analysis, the justification of the method or the benchmarking study opens the same door as total absence: the ex officio estimate, with adjustment to the median. "I have something on paper" is not a defence. The difference is not between "I have a file" and "I have no file", but between "I have a complete, documented file" and "anything else".
The total absence of a file leads directly to the ex officio estimate and exposes you to a fine; the taxpayer starts from zero, with no technical position. A weak file — superficially chosen comparables, an inconsistent functional analysis, opaque benchmarking — can be treated as incomplete, hence equivalent to no file, and, in addition, hands the audit the weak points on which to build the adjustment. Sometimes a poor file is more dangerous than none, because it simulates compliance without its substance. In both cases, the taxpayer loses control over the method and the comparables.
The burden of proof is shared: under Article 73 of the Tax Procedure Code, the taxpayer must prove the acts and facts underlying its returns, and the authority must give reasons for its findings. In transfer pricing, the file is the means by which the taxpayer makes its proof: without it, there is nothing to demonstrate that the prices comply with arm's length. The absence of the file is not merely a formal breach — it is a surrender of one's own defence.
This is clearest at the point of view on the draft report: the taxpayer who has a file can challenge, point by point, the method and comparables of the authority; the one without a file can, at most, oppose general assertions, without technical support. The difference between the two positions often translates directly into the amount left to pay — especially when the audit closes with a large amount due.
The act — failure to present on time — is complete; a file filed after the deadline does not cancel the fine.
A sound study takes time: functional analysis, method, search, screening, adjustments. Compressed into a few days, the result is often challengeable from birth.
A file prepared in 2027 for 2024 transactions must use data contemporaneous with the transaction, not today's — hard to respect under pressure.
A file fabricated quickly, that does not fit the real functions, contracts and flows, is easily dismantled under careful analysis.
When the missing file combines with an adjustment, the effects accumulate in a predictable sequence: the fine for non-presentation; the adjustment of the base by estimate, at the median, across all open years; the ancillary charges — interest and penalties — to which non-declaration penalties may be added; and, possibly, the criminal dimension, but only if the adjustment reveals elements of evasion (fictitious transactions, concealment of the source), not through the mere fact of a price difference. A transfer-pricing adjustment is, in principle, a matter of tax law, not an offence.
Communicate in writing with the audit team and, where appropriate, request a reasoned extension under the law.
Intra-group contracts, invoices, correspondence, group policies, any studies received from the group — anything that can support a position.
Concentrate the effort on the flows with the greatest exposure, not on marginal ones.
An adviser can realistically assess what can be reconstructed and build the defence around the point of view on the draft report — useful also in defending the position at audit.
The reflex to answer, step by step, whatever is asked also relates to the rules on documents requested by ANAF: how you respond in the first days shapes the entire audit. And if the estimate is issued anyway, the defence continues with the party-appointed expert, who technically challenges the method and comparables of the authority.
Prevention remains the only strategy that works. The file is built before the audit, not during it. Prepared in good time, with a sound benchmarking study, it moves the discussion off the ground of the ex officio estimate onto that of method and comparables — where the taxpayer has arguments and the initiative. The most common situation of a missing file is not bad faith, but a misperception: a small company in a large group that assumes transfer pricing is "a multinational problem".
No. The administrative fine is comparatively small. The serious consequence is the ex officio estimate: ANAF sets the "market" prices itself and adjusts the result to the median of the range, for each open fiscal year. Interest and penalties are added on top. The financial impact usually far exceeds the fine.
Only partly. A late file does not cancel the offence for failing to present it on time, and a benchmarking exercise done in haste is often vulnerable. It may limit the losses, but it does not offer the protection of a file prepared in good time, with data contemporaneous with the transaction.
Not automatically. In principle, an adjustment is a matter of tax law. It takes on a criminal dimension only if there are underlying acts of tax evasion — fictitious transactions, concealment of the taxable source — not through the mere difference in method or comparables from the authority's position.
Very likely, yes. The materiality thresholds are assessed for each transaction with each related party, not by the size of the subsidiary. A single category of recurring transactions with the group can trigger the documentation duty.
Informational material, updated on 18 July 2026. It does not constitute legal or tax advice; individual situations must be analysed on their specific facts.
Time limits run from the moment of communication. An initial discussion clarifies what is being alleged, what you must justify and how the defence is built — before an estimate becomes a tax assessment.