A VAT case, 1.8 million lei at stake. The terms of reference for the expert report had been drafted quickly, by copying the conclusions from the administrative appeal: “to determine whether the tax authority lawfully refused the right to deduct”. The expert files the report with the only answer possible: the question falls within the court's jurisdiction, not the expert's. A year's wait for a document that says nothing. The case was not lost on the merits; it was lost at the drafting of the terms of reference.
In tax disputes, the merits are rarely decided by spectacular legal arguments. They are decided by evidence: who proves what, which documents can be filed and when, and, decisively, what the court asks the expert.
Bears the burden of proving the acts and facts underlying their own returns and any applications made to the tax authority: deduction, refund, exemption.
Bears the burden of giving reasons, supported by evidence, for administrative-fiscal acts issued on the basis of its own evidence or findings. This is not a drafting obligation, but an evidential one.
This distinction should be used actively, because the administration systematically blurs it. The taxpayer proves what they declared and what they applied for. But when the tax authority steps outside the scope of the return and establishes for itself a state of fact, reclassifies a transaction, refuses deductibility on the ground that the transaction is not real, or estimates income by indirect methods, the burden of proving that finding falls on it. An act that states that the supplier had “inappropriate tax behaviour”, without indicating the evidence from which the taxpayer's involvement follows, is not reasoned on evidence, and this is also a ground for challenging the legality of the act.
Before the court, the structure changes in two respects. First: the judge has no budgetary interest, and is not bound by the assessment of the evidence made by the tax authority. Second: the proceedings are governed by the Code of Civil Procedure, so evidence is taken that the inspection did not consider, above all the court-appointed expert report, which the tax authority never orders against its own findings. The burden of proof remains allocated by Article 73, but the evidential tools change radically.
This is the question that comes up in every case, and the answer has two layers.
Grounds of unlawfulness: yes, without question. By Decision no. 20 of 20 March 2023, given on a preliminary ruling on a point of law, the High Court of Cassation and Justice (ÎCCJ) held that the grounds of unlawfulness raised in the action for annulment are not limited to those set out in the administrative appeal.
Evidence: yes, with a nuance that matters. The administrative court reviews the lawfulness of the act, and this leads to a predictable objection from ANAF, Romania's national tax administration: “the document was not shown to the inspection, so the authority could not take it into account; the act is lawful in relation to what was in the file”. The objection has an appearance of logic, but it cannot be treated as absolute: refusing, as a matter of principle, any document not shown to the inspection would turn judicial review into a mere ratification of the administrative file and would empty the right to a fair trial of its content. In practice, courts do accept new documents, but they weigh them against a simple question: why were they not produced on time?
This is proved with the request letter, the correspondence, the minutes. It is the strongest position: it is not a new document, it is a document that was ignored.
This is proved with the inspection team's written requests, from which it follows that the document was not within the scope of the review.
Certificates of tax residence, confirmations from foreign partners, customs documents. Proof of the steps taken and of the date of obtaining them should be filed.
The most fragile situation. The reconstruction must be documented procedurally, otherwise it opens up a discussion about authenticity that can taint the whole case.
NOTE: The explanation of where a late-filed document came from is not a matter of procedural courtesy. A document that suddenly appears, unexplained, risks not merely being disregarded, but affecting the credibility of the whole defence, including the documents that are beyond dispute. In cases with a criminal dimension, a document that “appears” with no verifiable history can itself become the object of a separate suspicion. The practical rule: no new document without a page explaining why it is only appearing now, and who has been holding it.
In tax disputes where real amounts are at stake, the court-appointed accounting/tax expert report is the central piece of evidence. Not because the expert rules on the law, which they neither do nor may do, but because they redo the calculation, check the transactions against the records, and translate the defence's case into figures.
The evidence must be requested in the claim form, on pain of forfeiture (Article 254 of the Code of Civil Procedure). The claim must show what is to be proved by the expert report and must contain the proposed terms of reference. The court rules by way of an order which, under Article 331 of the Code of Civil Procedure, sets the terms of reference, the time limit for completion, the expert's provisional fee and, where applicable, the advance for travel expenses.
This is where the evidence is won or lost, and there is only one rule: the expert answers factual, technical and accounting questions, not questions of law. Any term of reference asking them to say whether something is “lawful”, “correctly established” or “well founded” gets the answer that it exceeds their remit.
Right: “To check whether the invoices in appendix X are recorded in the claimant's accounting records, whether there are corresponding transport and payment documents, and whether the goods were used in taxable transactions.”
Right: “To recalculate the taxable base for the period 2021 to 2023 on the assumption that the expenses in appendix Y are deductible, and to determine the difference from the amounts in the decision, with the related accesorii (interest and penalties).”
Right: “To identify, for each transaction in appendix Z, the supporting documents existing in the records and the payment flow shown in the bank statements.”
A term of reference framed as “on the assumption that the court finds that...” allows the expert to calculate without ruling on the law, and gives the court the figure it needs when it delivers judgment.
Every line of defence needs a term of reference that produces a figure. A court that allows the action needs to know how much it is annulling.
The term of reference should point to identified appendices, not to “the company's documents”.
The expert is appointed by the court, usually by drawing lots from the local register of experts; the parties may agree on an expert, but the agreement must be genuine. The provisional fee is advanced by the party that requested the evidence, in practice the taxpayer, since ANAF never requests expert reports against its own acts. Failure to lodge the fee within the time limit results in forfeiture of the right to the evidence: a case can be lost through a bank transfer that was never made. The amounts advanced form part of the litigation costs and can be recovered from the unsuccessful party.
Under Article 330(5) of the Code of Civil Procedure, experts chosen by the parties and approved by the court may take part in the expert examination, acting as advisers to the party; they may provide information, put questions and observations and, where appropriate, draw up a separate report on the terms of reference.
Identifying the expert and providing proof of their status as an authorised expert under O.G. nr. 2/2000. The court rules by way of an order.
It must be the same as that of the court-appointed expert or, if that is not possible, a related one in the same field.
The advisory expert knows the case file from the inside and can correct a mistaken premise before it makes its way into the report, far more effective than raising objections afterwards.
It is borne by the party that put them forward, but it can be included in the litigation costs.
Objections are raised, under Article 337 of the Code of Civil Procedure, at the first hearing after the report is filed: the court may ask the expert to clarify or supplement the report, or to resolve contradictions between the experts' opinions. A useful objection does not challenge the conclusion; it points to the mistaken premise: the document that was ignored, the arithmetic error, the term of reference that was left unanswered.
A fresh expert report (Article 338 of the Code of Civil Procedure) may be ordered for good cause, on request or of the court's own motion, using a different expert. The time limit is strict: the request must be made with reasons, on pain of forfeiture, at the first hearing after the report is filed, or, if objections were raised, at the hearing immediately following the filing of the reply to the objections or, as the case may be, the supplementary report. Anyone who “thinks it over” for one more hearing has lost the right.
Documents remain the queen of evidence in tax matters. The condition is not volume, but organisation.
Interrogatories put to ANAF. A legal person answers interrogatories in writing (Article 355 of the Code of Civil Procedure). Their usefulness is limited: the answers are drafted by lawyers and reproduce the act. They can, however, be used surgically, to pin down specific factual admissions, that a particular document was filed, that a particular check was not carried out.
Witnesses. Rarely admitted and rarely useful. The tax facts are proved with documents, and witness evidence cannot substitute for the accounting records. Specific exceptions: non-accounting factual circumstances, the actual performance of a service, the conditions of an inspection, the circumstances of a reassessment.
Evidence from the criminal file, an asymmetric relationship, governed by Article 28 of the Code of Criminal Procedure. A final criminal judgment has the authority of res judicata before the civil court as to the existence of the act and of the person who committed it. The civil court is not bound by a final judgment of acquittal or discontinuance of the criminal proceedings as regards the existence of the loss or the defendant's guilt. Conversely, a final civil judgment has no authority of res judicata before the criminal judicial authorities. In practice: a final conviction for tax evasion blocks any challenge, in the tax proceedings, to the existence of the act found proved; an acquittal does not automatically result in the assessment being annulled, particularly where it was based on the absence of intent. And documents and expert reports from the criminal file can be filed in the civil proceedings as documents, where they are freely assessed.
The most aggressive presumption in the system is the one at Article 117 of the Tax Code: any income found by the tax authorities whose source has not been identified is taxed at 70% applied to the adjusted taxable base, a rate in force since 1 July 2024. The base is established using indirect methods: source and application of funds, cash flow, net worth.
The mechanism is a presumption: the existence of taxable income is inferred from the unexplained difference between inflows and expenses. It can be rebutted only by identifying the source, with documents: loans with a certain date and a bank-traceable flow, gifts, sums brought in from abroad with customs declarations, prior savings proved by historical statements, the price of an asset sold. This is where the court-appointed expert report is the natural piece of evidence: the correct term of reference is not “whether the assessment is lawful”, but reconstructing the cash flow over the period reviewed, with documentary identification of each inflow. We deal separately with the procedural context, the review of personal tax position and the 70% tax.
A development worth watching: in 2026 the first rulings were reported in which administrative courts, including the Suceava Court of Appeal, held that, for income earned before 1 July 2024, the 70% rate cannot be applied, but rather the 16% rate in force when the income was earned, even where the tax assessment decision was issued later; the argument is the non-retroactivity of tax legislation. This solution limits the practice of applying the new rate solely by reference to the date the decision was issued. These are, however, individual rulings, not a binding determination: they may be cited as a legal argument, subject to prior verification of the stage reached and of whether the cited ruling has become final.
Five lever-arch files filed “as evidence”. The judge will not go through them, and the expert will list their contents at a cost. The right approach: an index, numbering, grouping by argument, with a memorandum linking each document to the point it supports.
The administrative appeal is a piece of legal argument; the terms of reference are technical questions. Copying produces the answer that it “exceeds the expert's remit”.
The same mistake, in its most frequent form, and its most costly one, because it is discovered a year later.
After the claim form has been filed, without falling within the exceptions in Article 254 of the Code of Civil Procedure. Forfeiture.
Within the time limit set in the court's order. A bank transfer that is never made can lose the case.
The expert examination is carried out with the parties summoned; failure to attend leaves the expert alone with the administrative file and the inspectors' explanations.
No. The evidence is admitted if it is lawful, plausible, relevant and conclusive (Article 255 of the Code of Civil Procedure). A request for an expert report drafted in generic terms, with no terms of reference and no indication of what fact is being proved, may be rejected as inconclusive. The request must explain exactly what cannot be established without specialist knowledge.
As a rule, yes: civil proceedings allow documents to be put forward, and the court is not confined to the administrative file. They will, however, be assessed with heightened scrutiny. The chance of them being given weight increases in proportion to the quality of the explanation of where they came from and why they were not produced on time.
No. The expert report is a means of evidence subject to the court's assessment, not a judgment. The judge may disregard it, with reasons, particularly if ANAF shows that the expert started from a mistaken legal premise. A favourable report built on correct terms of reference, however, carries decisive weight, because it gives the court a figure it can adopt in the operative part of its ruling.
Raise objections at the first hearing after the report is filed, asking for it to be supplemented or clarified (Article 337 of the Code of Civil Procedure) and stating precisely which document was ignored and the effect on the calculation. If the premise is irremediably flawed, request, with reasons, a fresh expert report (Article 338), strictly observing the time limit laid down on pain of forfeiture.
The tax authority. Under Article 73(2) of the Tax Procedure Code, acts issued on the basis of the authority's own evidence or findings must be reasoned by the tax authority. The taxpayer proves what they declared and what they applied for; where the administration asserts a state of fact of its own, an unreal transaction, a reclassified transaction, estimated income, the burden of proving that finding falls on it.
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.