A tax inspection usually starts as a predictable administrative procedure. At some point, though, the tone may change: the questions no longer concern “how much did you receive”, but “why did you not declare it”. From the inside, the change is hard to notice, the procedure looks the same, but the stakes have shifted. Here is where the line is crossed, and what changes for you once it is.
A tax inspection usually closes with administrative acts that can be challenged, the discussion remains about money. A criminal file for tax evasion concerns your liberty, your criminal record, your right to still run a company. The move from the first situation to the second does not happen through a dramatic moment, but through an apparently ordinary act: a report sent to the prosecutor's office.
On the tax side, the inspection body establishes the tax facts and the differences in obligations: the typical outcome is a tax assessment decision (decizie de impunere), accompanied by interest (0.02% per day), late-payment penalties (0.01% per day) and, where applicable, a non-declaration penalty, under Articles 173 to 181 of the Tax Procedure Code (Legea nr. 207/2015). Against the decision you have the route of the administrative appeal (contestație) (Articles 268 to 281 of the same code) and then the administrative court.
On the criminal side, the discussion is no longer about how much you owe, but about what you were pursuing. Tax evasion, in the forms set out in Legea nr. 241/2005, requires intent: conduct aimed at evading tax obligations, not a mere difference in calculation or interpretation. Here the standard of proof is higher, but the consequences are also of a different nature.
The subject is all the more topical given that, under OPANAF nr. 768/2026 (Monitorul Oficial nr. 553 of 6 July 2026), the review of an individual's personal tax situation may now also be carried out by inspectors of the Anti-Fraud Directorate General, including the application of the 70% tax on income from unidentified sources. More reviews of individuals inevitably mean more situations sitting at the border between administrative and criminal.
The tax authority does not classify the conduct as criminal and does not decide guilt, it flags indications. The assessment belongs to the prosecutor, who may order the opening of criminal proceedings or the discontinuance of the case. But the mechanism that triggers everything is strictly regulated and, in certain conditions, mandatory.
Under Article 132(1) of the Tax Procedure Code, the tax inspection body has a duty, not a discretion, to refer to the competent judicial bodies any findings from the inspection that could meet the constituent elements of a criminal offence. For any public official, this duty also follows from Article 291 of the Criminal Procedure Code.
Inspectors draw up minutes, which you sign together with any explanations or objections, and a refusal to sign is recorded as such (Article 132(2)). The minutes are communicated to you and constitute the referral act: they form the basis of the file sent to the prosecutor's office (Article 132(3)).
Anti-Fraud inspectors, in turn, have a duty to refer matters to the criminal investigation bodies (OUG nr. 74/2013). Their minutes have a dual nature: a referral act and a means of evidence in the criminal proceedings. An Anti-Fraud inspection can feed directly into a criminal file, without the intermediate step of a tax assessment decision.
Since Legea nr. 295/2020, for the obligations covered by the criminal referral the inspection body no longer issues a tax assessment decision: for those amounts, the inspection is concluded through the referral minutes, and the loss is established in the criminal proceedings. The rule is set out in Article 131 of the Tax Procedure Code, and the implementing procedure was detailed by OPANAF nr. 1071/2021.
If the prosecutor later orders the discontinuance of the case or a waiver of the criminal investigation, or the court leaves the civil claim unresolved, the tax authority may resume the inspection and issue the administrative acts, within the limits of the limitation period.
For the amounts “moved” into the criminal proceedings, you will not, for a while, have an administrative act to challenge, but you may be subject to precautionary measures: seizures and garnishments (sechestre, popriri), ordered by the tax authority and by the judicial bodies alike.
Not every finding made by the tax authority can become a criminal file. As a rule, the matter stays administrative where the obligation was wrongly declared because of a classification error, a diverging interpretation of the law, incomplete documents or negligence, these are corrected through assessment and late-payment charges (accesorii). The matter moves into criminal territory where there are indications of concealment, documentary fraud, or misrepresentation of reality, that is, of intent.
For individuals, case law, including at the level of the High Court of Cassation and Justice (ÎCCJ), has drawn a useful distinction: where income was recorded in legal documents (for example, in accounting records or registered contracts) but was not declared, the tax authority could have found out through a simple check, so there is no “concealment”; by contrast, for income subject only to a declaration duty, failure to declare may be treated as concealment of the taxable source.
The principle to keep in mind: the line is drawn by intent and concealment conduct, not by the mere existence of a tax difference.
The line is not always applied strictly. There are criminal referrals made out of caution, “just in case”, which are later discontinued, but by then the taxpayer has gone through years under criminal investigation. This is precisely why how you handle the administrative stage matters decisively.
None of these signals alone means a referral is imminent. Together, however, they call for a change in how you operate: from that point on, any document and any sentence can end up in the criminal file.
The explanatory notes focus on purpose and intent, “why”, “who decided”, “what were you pursuing”, not just on figures.
The period or scope of the inspection widens without apparent explanation, and inspectors ask for old documents, in original.
Checks appear at business partners, or explanations are requested from employees and former employees.
The inspection is suspended, and correspondence shows that information has been requested from other institutions, with effects also on the statutory duration of the inspection.
In parallel with the inspection, the Anti-Fraud Directorate steps in, or the criminal investigation bodies seize financial and accounting documents.
In discussions, Legea nr. 241/2005 is invoked, or you are told that “the matter may become criminal”.
You are asked for the statement of assets and income, and the questions concern the origin of the funds, not just their amount.
The findings start from information that you did not provide yourself: accounts reported under CRS, bank transactions, platforms.
Once the prosecutor's office is notified, you may successively hold three procedural positions: witness, suspect, defendant. From the moment you acquire the status of suspect, you have specific rights: the right to be assisted by a lawyer, the right to make no statement at all (Article 83 of the Criminal Procedure Code), the right to access the file through your lawyer.
Here a tension arises that few taxpayers notice in time. In the tax stage, Article 10 of the Tax Procedure Code imposes on you a duty to cooperate. In the criminal stage, the right not to contribute to your own incrimination applies, as established by ECHR case law in cases such as Funke v. France (1993), Saunders v. the United Kingdom (1996) and Chambaz v. Switzerland (2012). Statements and explanatory notes given “administratively”, under the duty to cooperate, may later become evidence in the criminal file. This is why how you answer during the inspection must be calibrated from the outset as if a prosecutor might read it.
The route of appeal also changes. For the amounts referred for criminal proceedings, no tax assessment decision is issued, so there is not yet a decision to challenge. For the amounts remaining in the administrative sphere, the appeal follows the rules of Articles 268 to 281 of the Tax Procedure Code, though its resolution may be suspended, under strict conditions, where the referral concerns offences connected with the evidence used to establish the tax base, and their finding would have a decisive bearing on the outcome (Article 277 of the same code).
The non-punishment window, Legea nr. 126/2024. Since Legea nr. 126/2024 (Monitorul Oficial nr. 437 of 13 May 2024), if the inspection identifies a loss of no more than EUR 1,000,000, and it is covered in full, increased by 15%, plus interest and penalties, within a maximum of 30 days from the completion of the inspection, the conduct is not punished, and the competent authorities no longer refer the matter to the criminal investigation bodies (Article 10 of Legea nr. 241/2005, for the offences under Articles 6¹, 8 and 9). The window is short, the conditions are cumulative, and the decision to pay, which involves accepting the amount, must be weighed with your lawyer and tax adviser, in light of how solid the findings are.
The temptation to retroactively cover a missing document turns a tax problem into evidence of intent, and may itself amount to the criminal offence of forgery.
Improvised answers that contradict each other are exploited later. You have the right to ask for reasonable time and to answer in writing.
Deleting data after the inspection has started is detectable and devastating as evidence.
Suggestions as to what exactly to state can attract additional charges, distinct from tax evasion.
Failing to appear, repeated postponements, fictitious addresses allow the tax base to be estimated and reinforce the case for bad faith.
Disposals to close relatives, large cash withdrawals or moving funds attract precautionary measures and suggest preparation for insolvency.
What you say off the record does not exist as a procedural guarantee, but it can exist in the referral file.
The most important evidence for the prosecution is often built precisely during the tax inspection.
The Tax Procedure Code recognises your right to specialist or legal assistance throughout the inspection (Article 124), and the notice of tax inspection (aviz de inspecție fiscală) expressly mentions this right. The reasonable steps to take are as follows.
The lawyer and the tax adviser identify sensitive areas, atypical transactions, missing documents, undeclared income, before inspectors find them, and assess the risk of criminal recharacterisation.
A single channel, written answers, a complete record of documents handed over, deadlines met or formally extended.
Answer the question asked, precisely and with supporting documents, without speculating about intentions and without committing to unverified circumstances.
A reasoned tax position, specialist opinions, extrajudicial expert reports, documents that stay in the file and will, if needed, also be read by the prosecutor. The key moment is the draft tax inspection report.
Reassessing the communication strategy, analysing the non-punishment window under Legea nr. 126/2024, preparing for possible precautionary measures.
Coordinating the tax appeal for the amounts assessed administratively with the criminal defence for the amounts referred, so that positions taken in one procedure do not undermine the other.
The tax inspection and the criminal file are not two separate worlds, but two stages of the same conflict, with different rules. Whoever treats the administrative stage as a formality sometimes discovers, too late, that the most important evidence for the prosecution was built precisely then.
No. Differences resulting from errors, diverging interpretations or negligence are resolved administratively, through a tax assessment decision and late-payment charges (accesorii). A criminal referral requires indications of intentional conduct aimed at evasion, concealment, documentary fraud, or misrepresentation. In practice, however, the line is sometimes applied broadly, which is why the administrative stage must be handled rigorously.
In the tax stage you have a statutory duty to cooperate (Article 10 of the Tax Procedure Code), and an unjustified refusal may work against you. You do, however, have the right to reasonable time, to answer in writing and to specialist assistance. Where there is criminal risk, the content of your answers must be calibrated with your lawyer, because statements made during the inspection can later become evidence in the criminal file.
It depends on the timing and the amount. For losses of no more than EUR 1,000,000, full payment of the loss increased by 15%, plus late-payment charges (accesorii), within 30 days of the completion of the inspection, removes the penalty, and the referral is not made (Article 10 of Legea nr. 241/2005, as amended by Legea nr. 126/2024). Payment made after the referral no longer prevents the file from proceeding, but it may lead to a reduced sentence, under the conditions set by law.
The minutes drawn up under Article 132 of the Tax Procedure Code are communicated to you. In practice, some taxpayers only learn of the file's existence when summoned as a witness or notified of suspect status. From the moment you acquire a procedural status, your lawyer can request access to the file and you can exercise your procedural rights, including the right to make no statement.
Not during the criminal proceedings. For the obligations covered by the referral, the inspection is concluded through the minutes, and the loss is established in the criminal proceedings. If the prosecutor orders the discontinuance of the case or a waiver of the criminal investigation, or the court leaves the civil claim unresolved, the tax authority may resume the procedure and issue the administrative acts, within the limits of the limitation period.
Informative material, updated on 17 July 2026. It does not constitute legal or tax advice; individual situations must be assessed on their own facts.
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.