A case argued for months on the merits, deductibility, transfer pricing, the reality of the transactions, can be decided in a single hearing, on an argument that has nothing to do with the merits: the act is null. Hence the temptation to hunt for “formal defects” as if they were a lottery ticket. The reality in the courtroom is far less generous.
Article 49 of the Tax Procedure Code, in the form resulting from the amendments made by Legea nr. 295/2020, builds a two-tier system, and most “formal” defences fail precisely because they ignore this distinction.
Lists exhaustively the situations in which the administrative-fiscal act is null. The nullity operates by law, no prejudice needs to be proved, and it may be found even of the authority's own motion.
Acts that breach other statutory provisions than those in paragraph (1) are voidable, a relative nullity, conditional on prejudice being proved.
The nullity may be found by the competent tax authority or by the body deciding the administrative appeal, on request or of its own motion; where it is found by the competent tax authority, that authority issues a decision which is communicated to the taxpayer.
An act issued by a tax authority lacking jurisdiction, whether subject-matter or territorial, is null. Check who actually issued the act, not who appears on the letterhead: delegations of authority, files transferred between tax administrations, and the powers of anti-fraud units in reviewing personal tax position frequently give rise to real problems.
The text lists: the surname, first name and capacity of the tax authority's authorised officer; the surname and first name, or the name, of the taxpayer; the subject-matter of the act; the signature of the authorised officer; the issuing tax authority. That is all, subject to the exception laid down in Article 46(6).
The law defines it: the act is affected where the causes underlying its issue are so flawed that, had they been removed before or at the time of issue, the act would not have been issued. A demanding test; not every calculation error falls within it.
If, before the act was issued, you presented the tax authority with a written opinion previously issued by that authority, or a solution adopted under Article 6(1) of the Tax Procedure Code, and the authority fails to give its reasons for not taking it into account, the act is null. In practice: the opinion must be filed with the administrative file, with proof, before the decision is issued.
When a new act is issued, in the case of the setting-aside provided for by Article 279(3) of the Tax Procedure Code. The authority repeating the inspection is bound by the reasoning of the decision; going beyond it renders the new act expressly null.
The report and the decision issued after the inspection has terminated under Article 126(2) of the Tax Procedure Code, where twice the maximum duration has been exceeded, or after the review of personal tax position has terminated under Article 140(6), without a lawful resumption. The strongest nullity in the Code: it is proved with a calendar.
The seventh situation, point (g), concerns the issuing of the report and the decision where findings are made in connection with the commission of acts defined by criminal law concerning the means of evidence relating to the establishment of the tax base under inspection, a case to which Article 132 of the Tax Procedure Code applies.
NOTE: Do not confuse the list in point (b) with the list of the act's elements in Article 46(2) of the Tax Procedure Code. The act must contain, among other things, the factual grounds, the legal basis, mention of whether the taxpayer was heard, and an indication of the remedy available, but the absence of these is not sanctioned with express nullity, because they do not appear in Article 49(1)(b). They fall under Article 49(3), that is, they are voidable, and there you must prove the prejudice. An action seeking annulment “for lack of reasons” and relying on Article 49(1) is wrongly framed from the first page, and will be treated as such.
This is where the reasoning, the hearing and most procedural complaints belong. The regime is different: the court checks whether the irregularity caused you prejudice that cannot be remedied otherwise.
Reasons: formal versus real. Article 46(2) of the Tax Procedure Code requires the act to contain the factual grounds and the legal basis. In practice, many decisions “give reasons” by a blanket reference to the inspection report and by citing legal provisions, without explaining why the specific situation falls under those provisions. The distinction we ask the court to draw is between formal reasoning, there is a paragraph headed “factual grounds”, and real reasoning, which allows the recipient to understand and challenge the reasoning, and the judge to review it.
The European benchmark is the CJEU judgment of 18 December 2008, Sopropé, C-349/07: the right to be heard before the adoption of a decision adversely affecting a person must be effective, not merely formal, and the authority must give due consideration to the observations submitted. An act that does not show what was done with your submissions does not meet this requirement. The consequence is not, however, automatic: insufficient reasoning leads to annulment where it actually prevents you from defending yourself, or prevents judicial review, not simply whenever the drafting is weak.
The right to be heard (Article 9 of the Tax Procedure Code). The tax authority is required, before making its decision, to give the taxpayer the opportunity to state their view on the relevant facts and circumstances. Paragraph (2) provides for exceptions, including situations where delay would jeopardise the establishment of the true tax position, cases of enforced collection, or where the information presented by the taxpayer is accepted.
The problem, dealt with honestly: Article 9 carries no sanction of its own. Failure to hold a hearing does not appear in Article 49(1), so it is not an express nullity. Romanian case law is divided: some courts annul the act for the mere disregard of the hearing procedure, while others, the majority in recent years, apply the test laid down by the CJEU in its judgment of 3 July 2014 in the joined cases C-129/13 and C-130/13, Kamino International Logistics and Datema Hellmann Worldwide Logistics: a breach of the rights of the defence results in annulment of the decision only if, in the absence of the irregularity, the procedure could have led to a different outcome.
The strategic consequence is direct: do not raise the failure to hold a hearing as an abstract defect. Show exactly what you would have said and what evidence you would have filed had you been heard, and why those elements could have changed the outcome. Without this demonstration, the complaint is dismissed. This is where the value lies of the written response filed to the draft inspection report: it builds, in advance, precisely the proof of prejudice.
Unlawful communication: not nullity, but unenforceability. A costly confusion. An act communicated in breach of Article 47 of the Tax Procedure Code is not null, it is unenforceable against you. Article 48(2) of the Tax Procedure Code provides that an act not communicated under Article 47 is not enforceable against the taxpayer and produces no legal effect. The practical effect concerns time limits: if the act was not lawfully communicated to you, the 45-day time limit for the administrative appeal has not started to run, and any forfeiture relied on by the tax authority does not operate. The most fragile cases are communication by public notice while your Spațiul Privat Virtual (SPV), the tax authority's secure online portal, is active, and communications sent to old addresses.
Exceeding the duration of the inspection. Exceeding the 180/90/45-day time limits in Article 126(1) of the Tax Procedure Code does not, by itself, annul anything; these are indicative time limits. Exceeding double that duration, however, results in the automatic termination of the inspection, and any acts issued afterwards, without a lawful resumption, are null under Article 49(1)(f). The defence is built with a calendar, not with adjectives; the details are in the analysis on the duration of the tax inspection.
Reassessment without grounds. A reassessment (Article 128 of the Tax Procedure Code) is lawful only where there are additional data, unknown to the authority at the first inspection and capable of affecting its results, and it requires a reasoned reassessment decision, communicated under the same regime as the inspection notice. A decision that relies generically on “new information” can be separately challenged, within 45 days.
Before writing anything: Article 49(1), express nullity, no prejudice required, and Article 49(3), voidability, with prejudice to be proved. Getting the classification wrong costs you the argument.
Ahead of the arguments on the merits, with the exact statutory letter cited as the basis. Expressly ask the appeal body to find the nullity under Article 49(2) of the Tax Procedure Code.
The nullity can be found, on request, by the competent tax authority, which issues a decision communicated to the taxpayer; a quicker route than the administrative appeal, useful where the defect is beyond dispute.
The written response to the draft report is where you show which defences and which evidence were not taken into account. It is the piece that, a year later, supports the challenge based on reasoning or on the hearing.
Do not limit yourself to what you wrote in the administrative appeal: by Decision no. 20/2023, given by the Panel for the resolution of points of law, the High Court of Cassation and Justice (ÎCCJ) held that the grounds of unlawfulness in the action for annulment are not limited to those raised at the administrative stage.
Under Article 248 of the Code of Civil Procedure, the court rules first on pleas that render examination of the merits unnecessary, in whole or in part. Structure the claim in this order and expressly ask for these to be decided first.
Do not say “the act is null, so there is no need to discuss the merits”. The court may reject the nullity, and if you have not developed the merits, you have lost the case in a single move.
The real success rate of “formal” defences is modest, and the reason is simple: courts require actual prejudice, and require it to be proved. The nullities that win cases are almost always the ones that can be proved objectively, a calendar showing double the duration exceeded, a reassessment decision issued without additional data, an act issued by an authority lacking jurisdiction, a prior opinion filed with the file and disregarded without a word. The ones that lose are raised generically, as a last resort, in place of a defence on the merits that was never built.
The right strategy is cumulative: procedural defects are raised first, because they can close the case quickly and without the need for an expert report, but the case is prepared as if they were going to be rejected. In tax matters, anyone who stakes everything on form loses twice: once on the plea, and again on the merits, which they never prepared. And for as long as the act produces effects, enforcement continues: if the amount at stake justifies it, the suspension of enforcement should be sought in parallel, not afterwards.
No, as a rule. Article 49(1)(b) sanctions the absence of the authorised officer's signature, but expressly provides for the exception in Article 46(6) of the Tax Procedure Code: an act issued under Article 46(2) and printed through a mass-printing centre is valid even without the signature of the authorised officers and without the issuing authority's seal, provided it meets the applicable statutory requirements. Do check, however, whether the act shows the issuing authority and the surname, first name and capacity of the authorised officer; these remain essential elements.
You can raise a breach of Article 9 of the Tax Procedure Code, but it is not an express nullity. The majority practice applies the test from the CJEU case law (joined cases C-129/13 and C-130/13, Kamino and Datema): annulment follows only if, in the absence of the irregularity, the procedure could have led to a different outcome. You must therefore show what you would have argued, what evidence you would have filed, and why those elements could have led to a different outcome. A complaint raised in the abstract is dismissed.
Yes. Under ÎCCJ Decision no. 20/2023, the grounds of unlawfulness in the action for annulment are not limited to those raised in the administrative appeal. You can develop the existing grounds and raise new ones, including defects you had not noticed at the administrative stage. The time limit remains 6 months from communication of the appeal decision.
It depends on the defect and on the limitation period. Nullity sets aside the act, not the claim: the authority may resume the procedure and issue a new act, provided it still has the right to establish the claim within the 5-year limitation period. The important exception is the one in Article 49(1)(f), where the inspection has terminated automatically: resumption is possible only once, with the approval of the superior hierarchical authority, and the limitation period is not suspended for the duration of the terminated inspection, which often makes resumption impossible in practice for older years.
It is not null, but it is unenforceable against you, a distinction with practical effects better than nullity. Under Article 48(2) of the Tax Procedure Code, an act not communicated in accordance with Article 47 is not enforceable against you and produces no legal effect. The consequence: the time limit for the administrative appeal has not started to run, and any forfeiture relied on by the tax authority does not operate. Communication by public notice while an SPV is active is one of the most fragile practices around.
Informative material, updated on 18 July 2026. It does not constitute legal or tax advice; individual situations must be assessed on their own facts.
If the appeal period is already running, the other analyses on this subject are grouped under tax litigation. For the concrete stages of a dispute, see tax disputes.
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.