După ce, la finalul săptămânii trecute, a demisionat din PNL, partid sub culorile căruia a fost 2 mandate senator și alte 3 și jumătate președinte al CJ Brașov, fostul președinte al Consiliului Județean Brașov, Aristotel Căncescu, s-a adresat Parlamentului European.
În scrisoarea adresată Comisiei pentru petiții a celui mai înalt for european, Căncescu își prezintă situația în care se află în prezent, arătând că este victima unor abuzuri fără precedent pe care DNA Brașov le face împotriva sa și a firmelor sale, pe baza unor probe fabricate și a declarațiilor unor martori cu mari probleme în justiție.
Căncescu spune că a ajuns în această situație pentru că a refuzat să formuleze denunțuri împotriva Președintelui Senatului României, Călin Popescu Tăriceanu. Sechestrele asiguratorii, instituite abuziv asupra averii sale personale și asupra instituției de presă pe care o patronează, aflată în procedură de insolvență și în reorganizare, blocarea, de mai multe luni, a conturilor curente destinate salariilor angajaților și a utilităților, încalcă, potrivit fostului liberal brașovean, libertatea fundamentală de exprimare, garantată prin Constituția României.
În art. 30 din Constituția României, se precizează clar că nicio publicație nu poate fi suprimată.
De asemenea, rolul sechestrelor pe perioada unei cercetări penale este unul asigurator și nu reparator, așa cum se întâmplă în acest caz.
"După cum am prezentat si iterat elementele în cauză, reiese foarte lesne că nici măcar una dintre exigențele impuse de art. 259 C.pr.pen., Convenția Europeană a Depturilor Omului ori de către practicile formate de Curtea Europeană a Drepturilor Omului nu este satisfăcută, astfel că o ingerință precum cea din cauza pendinte, nu este deloc justificată si contravine unor drepturi si principii fundamentale", mai arată, în scrisoarea sa, Aristotel Căncescu.
Textul integral al scrisorii:
I, the undersigned, Căncescu Aristotel Adrian, a Romanian citizen, domiciled in Brasov, 8 Stâncii st., county of Braşov, Romania, Under Articles 20 (paragraph 2 letter d and 227 of the Treaty on the Functioning of the European Union (TFEU) and Article 44 of the EU Charter of Fundamental Rights, hereby bring to your attention the following:
At present, I am the defendant in file no. 1260/62/2017 currently pending before the Brasov Court. I am charged with committing tax evasion offenses provided by art. 9 paragraph 1 letter 1 of Law 241/2005, consisting, broadly, in the fact that during the period 22.01.2007 - 18.06.2008 I would have acted for the purpose of evading payment of the fiscal obligations to the state budget of the taxes and duties related to the assignment of 32 audiovisual licenses issued by CNA For the MIX FM radio station in several localities in the country, in my position of factual and then associate manager of CANARIS SRL.
During the criminal prosecution in the criminal file, CANARIS SRL has been subjected to several fiscal controls that have been carried out abusively. At the same time, I also point out the abuses made in the criminal file/case under the number mentioned above, in which both me and CANARIS SRL have the position of defendants.
1. Short history of the criminal file/case.
On 16.08.2007, Nicolae Vlad Popa filed a criminal complaint with the DNA (National Anticorruption Directorate) - Central Structure, the Section for Combating the Offences assimilated to those of Corruption, through which he informed the Public Ministry that I, the undersigned Aristotel Căncescu committed the offense of forgery in statements, provided by art. 292 previous Criminal Code, regarding the way in which the undersigned obtained 5 audiovisual licenses and respectively I disposed of them out of a total of 11 frequencies operating on the Brasov radio market. To start the investigation of this criminal offence, criminal file no. 223 / P / 2007 was registered/opened, which was annexed to the criminal file no. 190 / P / 2007.
By the order of 05.03.2012 (5 th of March), filed in file 190 / P / 2007, the DNA - Central Structure - Division for Combating the Offences assimilated/related to Corruption Crimes, the Classification/closing of some Criminal Offenses, the Division/breakdown of the Case and continuing the Investigations within the respective Section with regard to the Offense of tax evasion provided by art. 8 and art. 9 of the Law no. 241 of 2005 on the prevention and combating of tax evasion, and in this respect file 98 / P / 2012 was registered.
On 22.11.2013 (22 November) the criminal file was sent by administrative means for being solved to DNA - Territorial Service of Brasov, as a result of which the file no. 105 / P / 2013 was registered. In this file it was also filed the notification of ANAF (National Anti-fraud Department) - DGRFP Brasov made through the Minutes no. 74 / 22.2.2016.
2. Regarding tax procedures:
As a result of the operations in question and the fact that their legitimacy was challenged/contested by my political opponents, I asked for the opinion of the tax specialists, and I asked for ANAF to carry out checks to verify the legality of the transactions. In addition to the control/audit required by CANARIS SRL, there were several checks that verified the same issue at the initiative of the criminal investigation bodies.
The first audit took place in March 2007, before the legal deadline for submitting the statements related to income tax, i.e. before the time when the income and expenses for the period are registered and the tax base is established. This is registered in the Canaris Single Check Register at position no. 4. The objective of this control was to establish the tax status with reference to the operations of license assignment from Canaris SRL to Canet SRL. The conclusions of the minutes of March 20, 2007 concluded by the Braşov Fiscal Control Directorate within DGRFP Brasov, signed by Mrs. Ec. Dragan Adriana and Mrs. Pop Elena were: As a result of the verification, there were no deficiencies in the way of recording, establishing and reporting obligations arising from the aforementioned transactions.
If, as a result of this verification, deficiencies had been found in the way in which revenue and expenditure were to be accounted for, I would have requested that they be restored, as would have been the indications of the tax entity, and since I was within the deadline for submitting the income tax statement, I would have adapt it in accordance with the conclusions of the control report/audit. It did not even require a calculation of increases, interest or penalties, as the resulting changes were made within the statutory deadline for statement submitting.
However, if the tax authority also concluded at the time of events that there were no deficiencies in the way of recording, establishing and reporting liabilities due to the aforementioned transactions, we had the representation that the transactions are fair.
Subsequently, during the investigations carried out by the Central Structure of DNA, following the claim made by Mr. Nicolae Vlad Popa, Canaris was again subject to unannounced verification (March 2008) by ANAF Antifraud specialists of Bucharest, with the same objective of check establishing the tax status on the transactions between Canaris SRL and Canet SRL related to audiovisual licenses.
The conclusions of the Minutes of 13.03.2008 and 19.03.2008 show that "the establishment of the fiscal status, regarding the commercial relations [...] the way of recording in the accounting records, the way of establishing the tax liabilities/obligations, the way of reporting these liabilities/obligations, are included in PV (Minutes) 1241 / 21.03.2007 " The Minutes of 13.03.2008 (at Canaris SRL) and 19.03.2008 (at Canet SRL) are prepared by Celea Sorin, Măceşanu Mihai and Marinescu Cristian, acting as tax inspectors within the National Agency of Fiscal Administration - Antifraud Directorate. They are registered at the fiscal body under no. 3136 / 13.08.2008 and in the Single Check Register of Canaris SRL under item no. 7. The checks carried out had all the documents and written stuff on which the transactions were based.
As a result, in 2008, following several checks by specialized bodies, verifications carried out to verify whether there were facts that could constitute the elements of a criminal offense, the transactions were considered fair and no tax audit was requested to modify the tax base related to these transactions (the mandatory procedure in the case of detecting irregularities in the quantification of income and the establishment of taxes / taxation).
On 31.07.2013, Canaris again underwent an unannounced check from the Fiscal Investigation Unit within ANAF Bucharest, at the request of the Central Structure of DNA, to establish the tax status required for criminal investigations in progress at that time. The check had again, as objective, the verification of the acquisition of the audiovisual licenses, their sale, the recording of the economic operations in the accounting records of CANARIS SRL, as well as the commercial relations between this company and CANET RADIO SRL during 01.01.2007-31.12. 2008.
At the end of the tax check/audit, the minutes were issued, according to which the sale of 33 audiovisual licenses was dissimulated, the transfer of licenses took place at insignificant prices between the companies controlled by Căncescu Aritstotel. In the check/verification act the operations between CANARIS SRL and CANET RADIO SRL were reconsidered according to art. 11 par. 1 of Law 571/2003 on the Fiscal Code, in the sense that when determining a fee or a tax, the tax authorities may not consider a transaction that has no economic purpose or may re-shape this transaction in the form of a transaction to reflect its economic content. As a result of the reconsideration of these operations, tax obligations have been imposed on CANARIS, in the amount of 1,574,718 euros (854,847 euro - tax on profit and 719,871 euro - VAT).
Thus, although the Minutes contains references to the affiliation relations between the persons who have managed these operations, the check body applies the measure of reconsideration under art. 11 paragraph 1 of the Fiscal Code 1 , which at the time of the reconsideration of the transactions was inapplicable to affiliated Romanian legal persons (this also results from point 22 of the Methodological Norms for the application of Law 571/2003 on the Fiscal Code - approved by the Government Decision No. 44/2004 2.1 Law No 571/2003 Art. 11
(1) When determining the amount of a fee or a tax within the meaning of this Code, tax authorities may not consider a transaction that has no economic purpose or may re-shape the form of a transaction to reflect the economic content of the transaction.
(2) In a transaction between affiliated persons, tax authorities may adjust the amount of income or expense of any person as may be necessary, to reflect the market price of the goods or services provided in the transaction. When determining the market price of transactions between affiliated persons, the most appropriate of the following methods shall be used:
a) The price comparison method whereby the market price is determined on the basis of the prices paid to other persons selling comparable goods or services to independent persons;
b) The cost-plus method whereby the market price is determined on the basis of the price of the goods or service provided by the transaction, increased by the corresponding profit margin;
c) The resale price method whereby the market price is determined on the basis of the resale price of the good or service sold to an independent person, reduced by the expense of the sale, other expenses of the taxpayer and a profit margin;
d) Any other method recognized in the transfer pricing guidelines issued by the Organization for Economic Cooperation and Development.
2 Methodological Norms for the Application of Law 571/2003 on the Fiscal Code, “22. Romanian tax authorities may, for the purpose of calculating the tax obligations of affiliated persons, reconsider the records of the affiliated person in Romania for the purposes of tax examination if, as a result of the special relationship between the Romanian and foreign affiliated persons, these evidences do not reflect the real taxable profits outcoming from Romania. There is no reconsideration of the records of the affiliated persons when the transactions between such persons take place in commercial terms of free market, as well as in the case of transactions between affiliated Romanian legal persons.
The reassessment of records refers to the adjustment of income, expense, for the purpose of calculating the tax liabilities of re-affiliated persons. Reassessment of the affiliated persons' records is not made when transactions between such persons occur in commercial terms of free market, respectively as transactions between independent persons.
Against these Minutes I sent ANAF a complaint to which I have not received any response so far. Subsequently, DGRFP Brasov started a tax inspection/check at CANARIS SRL in December 2013, finalized in February 2016. The period was verified for 01.01.2007-31.12.2009 – for income tax and 01.08.2008-31.12.2009 for VAT.
In the course of the tax/fiscal inspection, partial Minutes no. 74 / 22.02.2016 was issued, by which the DNA of Braşov was notified regarding the suspicion of committing the offense of tax evasion by the undersigned, consisting of the alleged evasion of the tax obligations related to the assignment of 33 audiovisual licenses at a price below the market price. It is alleged that this operation had the consequence of not declaring and not fully recording the obligations owed to the state budget which would meet the constitutive elements of the offense provided. by art. 9 par. 1 letter a) of Law 241/2005.
During the fiscal inspection/check carried out at CANARIS SRL I presented to the fiscal inspectors the fact that I requested, immediately after the operations in question, several checks from the tax bodies that had been finalized with the conclusion of some Minutes that did not indicate fiscal irregularities, that prove undoubtedly lack of intention to escape from paying taxex, but this has not been taken into account.
Thus, as regards adjustments to transfer prices, O.G. 92/2003 on the Fiscal Procedure Code provides, since 2006, the obligation to draw up the file of transfer pricing between affiliated legal entities, at the request of the competent tax authority. Regarding making adjustments at prices between affiliated parties, by May 14, 2010, the Fiscal Code by the provisions of art. 11, par. (2) provides: "In a transaction between affiliated persons, tax authorities may adjust the amount of income or expense of any person as may be necessary to reflect the market price of the goods and services provided under the transaction." In addition to these provisions of the Fiscal Code, paragraph 22 of the Methodological Norms for the application of Art. 11, par. 2 of the Fiscal Code, clarified until August 3, 2010 the following:
There shall be no reconsideration of the records of the affiliated persons when the transactions between such persons take place in commercial free market terms, as well as in the case of transactions between affiliated legal entities.
As a result, until May 14, 2010, the Methodological Norms on the application of the Fiscal Code stated expressly that for the transactions between Romanian affiliated legal entities there is no re-examination/reconsideration of the records. After May 14, 2010, with the entry into force of Law 76/2010, amendments were made to Article 11 paragraph 2 of the Fiscal Code, for the express clarification of the affiliated persons to whom these provisions apply. Thus, according to the provisions of Law 76/2010, Article 11 paragraph 2 of the Fiscal Code is amended as follows: " In the framework of a transaction between Romanian and non-resident affiliated persons as well as between affiliated Romanian persons, the tax authorities may adjust the amount of income or expenses of any person as necessary, to reflect the market price of the goods or services provided under the transaction " .Methodological Norms for the Application of Law no. 571/2003 regarding the Fiscal Code, within the framework of point 22 regarding the application of art. 11, paragraph 2 of the Fiscal Code, is amended by the Decision no. 791/2010 of 2 August 2010, as of August 3, 2010, as follows: " Reconsideration of the records, made by the fiscal authority to reflect the market price of the goods and services, is also made to the other affiliated person involved." The check documents carried out by ANAF Braşov state that " the trading of audiovisual licenses was made at a price that has not been shown to be a market price" and as a consequence the transaction has been reconsidered/redefined to reflect its economic content. I make it clear that the tax legislation did not stipulate that the parties of a transaction have the obligation to demonstrate its market price. This contradicts the abusive assertions and lacking of a relevant legal basis by the tax authorities.
On the other hand, if the tax authority considered that the two entities were affiliated legal entities, the provisions of Art. 11 par. 2 of the Fiscal Code, stating that "in a transaction between affiliated persons, tax authorities may adjust the amount of income or expense of any person, as may be necessary, to reflect the market price of the goods or services provided under the transaction.
Thus, in order to reconsider/re-define the transaction, the tax authority had to specify the reasons for which they had made this operation. I mention some of the issues that had to be clarified following the re-defining of the transaction: showing the economic content specific to the initial form of the transaction and the factual elements in which it should have materialized; showing the economic content characteristic of the form of transaction considered appropriate (re-examined) by the tax authority; indicating the factual elements in which the re-shaped form of the transaction and the evidence that proves their fulfillment materialize. The tax authority did not analyze these issues and did not actually substantiate the decision to re-enter/reconsider the transaction, but merely invoked the above-mentioned text of law and the statement that "by selling at a price below market price, the taxes and duties owed to diminished the state budget and consequently the deed is likely to meet the constitutive elements of the tax evasion offense.”
As mentioned above, the transaction was actually carried out, it had economic content, namely the audio-visual/broadcasting licenses were assigned, the transaction had CNA's (National Council of Audiovisual/Broadcasting) agreement, it was not hidden and was declared to the tax authorities after the same tax authorities had confirmed the legality of the operations. When an operation has economic content and has been tax-optimized legally, it is logical that no offense has been committed to hide the taxable base, as the Prosecutor's Office considers. I would like to point out that the tax authority had the possibility to reconsider the transaction at the first check in 2007, before the deadline for declaring taxes and duties related to the period in which the transaction took place, if irregularities were found.
Abusively, a few years later, the same tax body does not take into account the same rules applicable at the time of the occurrence of the events and reconsiders a transaction, abusively ignoring legitimate interpretation from a legal point of view. Moreover, in reconsidering this transaction, the tax body counts only on documents obtained from the criminal investigation body and its assessments through several statements of findings made since 2007, made to prove a charge and not to objectively establish the truth, with at least a doubt about their impartiality.
The Tax Authority (ANAF) did not unequivocally state the way in which the damage was established, the legal basis on which it established it and the methods applicable to the analyzed situation, namely:
- It has not been stated what is the new economic content of the reconsidered transaction and how the differences are calculated in this case. It was not stated whether in 2007, according to the applicable law, the reconsideration of transactions was applicable to affiliated legal entities;
-No account was taken of the previous audits, materialized in the minutes drafted by ANAF Brasov in 2007 and the Anti-Fraud Directorate of Bucharest in 2008, which had been carried out in order to "establish the tax status on the operations carried out with licenses", from which it appeared that the operations had been correctly recorded, quantified and highlighted in accounting;
- Moreover, the two checks in 2007 and 2008 were not even mentioned in the minutes submitted to the criminal investigating bodies;
- No account was taken of all the tax practice, which states that until 14 May 2010, when the respective transactions had been made, the prices between affiliated legal entities are not recalculated, but instead the tax authority switched to the estimated calculation of a so-called "market price" using a method that exceeds the legal framework, i.e. it is not stipulated in the Fiscal Code.
I also want to know the reasons why the above happened in this way, and at the same time I want ANAF to clarify in a transparent manner what the applicable legislation was regarding the reconsideration of transactions in 2007 in terms of profit tax value added tax.
3. Abuses by the authorities were not only made in the tax side of the pending case, but also in terms of criminal proceedings: To give an example, the undersigned asked, during the criminal trial, an expertise made by a randomly appointed Judicial Expert in the Expert Panel. This type of accountant expert is specialized in this type of transaction. The expert, in addition to his professionalism, would have been objective in appreciation because he is not part of the structure of the criminal investigative body and is not subordinated to them, as is the case with the specialists within the criminal investigation body conducting the investigation reports.
Moreover, in the procedure of conducting the expertise I, the undersigned, could propose objectives or participate with a Party expert to ensure the equitable procedure and equality of weapons. The criminal investigation authority, probably to deny the finding of the objective truth in question, rejected the request with a formal motivation. With regard to the offense of which I am accused, tax evasion, I mention that this can only be committed with intent. The criminal investigating authority does not take this into account, and without demonstrating my intention to evade my tax obligations, sued the file without taking into account the two tax inspections in which no deviations were found.
Moreover, they regard those controls/checks as illegal and abusive and for those reasons DNA Brasov began criminal prosecution of alleged crimes committed by tax inspectors who carried out the two controls in 2007 and 2008 just to strengthen the allegation against me.
At the same time, during the criminal prosecution in the criminal file no. 105 / P / 2013 of the DNA of Brasov, there were disposed precautionary measures regarding the CANARIS SRL and RADIO SRL assets. CANARIS SRL is in insolvency, in the reorganization phase, and now has the accounts denied/blocked and part of the buildings seized. The precautionary measures, especially the blocking of the special insolvency account (an illegal aspect according to the Insolvency Law!), lead to the company's inability to reorganize and suppress the activity of the press trust. So my interest is obvious in terms of the formulation of this petition to you.
The precautionary measures ordered during the criminal prosecution violate the provisions of the broadcasting law no. 504/2002.
According to art. 9 of Law 504/2002 "The conduct of searches in the headquarters or the premises of the broadcasters must not be prejudicial to the free expression of the journalists or suspend the broadcasting of the programs" By reference to the norm in question, the imposed precautionary measures in question suppress our activity of broadcasting programs. Thus, although the text of the law does not refer expressly to the precautionary measures, the searches at the headquarters of the broadcasters cannot even suspend the broadcasting of the programs. A contrario if a search, which is of a short duration and limited in duration, cannot jeopardize the broadcasting of the programs, the less could be the blocking of the broadcasting of the programs by establishing a precautionary measure.
I think art. 9 of Law 504/2002 also applies to precautionary measures, given the clear intention of the legislator to offer increased protection to the broadcasting activity. In this respect, the text of art. 9 of the indicated law should be interpreted in its spirit and not only in its letter, which is why we consider that the protection offered to the broadcasting activity extends to the precautionary measures that directly and effectively block the broadcasting of the programs.
Thus, the precautionary measures imposed on CANARIS real estates and accounts prevent us from exercising our activity and implicitly suppresses the broadcasting of the programs.
Due to the fact that we do not have liquidity to make payments to our suppliers, to gas, electricity, fixed and mobile telephone companies, to employees, ANCOM, and others, the broadcasting activity cannot continue. Given the specificity of the object of activity, liquidity is the essence of conducting operations in good conditions. On the other hand, the precautionary measures ordered in this case violate art. 30 of the Constitution.
As part of the regulation of the precautionary measures procedure, the legislator provided in Art. 249 par. 8, the Code of Criminal Procedure, the fact that the seizure cannot be applied to goods belonging to a public authority or public entity or to another person of public law, nor to the assets exempt from the law. Therefore, some exceptions are made to this procedure, depending on their cause. In the present situation, there is the question of applying the seizure measure to Canaris SRL assets. By analyzing the implementation of the precautionary measure in question, its effects exceed greatly the limits of the finality of its establishment, ie the avoidance of the payment of the alleged damage/loss.
As a consequence of the imposition of the measures, there is a total payment incapacity that includes the impossibility to pay the urgent expenses related to employees' salaries, as well as the debts due to different trading partners.
Along with the above, I also point out that the institution of seizure cannot prevent the suspect or defendant from acquiring his livelihood. As a result of the seizure, there are inherent limitations of his possibilities to continue its activity and implicitly to provide his livelihoods, especially as CANARIS SRL is in the process of insolvency in the reorganization phase 3.
Referring to the situation deduced in the present case, by imposing the seizure as we have shown, we are not talking about mere limitations of the company's possibilities to continue its activity. We are not even talking about a temporary cessation of activity, because in a highly capitalized society, the flow of activities is one that grows in volume and speed every day. Such a termination, even if it is theoretically possible, will go wrong with the suppression of activity and, implicitly, a definitive cessation of activity. Such a termination, even if it is theoretically possible, will be similar with the suppression of activity and, implicitly, a definitive cessation of activity.
Apart from the fact that the cessation of the activity of a company does not only affect the company, because it affects many actors (such as employees, collaborators etc.), in the present case we must not miss a very important aspect: public interest. From the point of view of the nature of the activity undertaken by society, broadcasting activity, television, the public interest around which any democratic society is built must always be considered. This public interest cannot be fully exploited, by ignoring a fundamental right, the right to free expression.
Appreciating the essential nature of this right in a democratic society of a rule of law is even stated in the Fundamental Law of the Romanian State which, in Article 30, establishes freedom of expression. Thus, according to constitutional provisions, "Freedom of expression of thoughts, opinions or beliefs and freedom of creation of any kind, by speech, by writing, by images, by sounds or by other means of communication in public, are inviolable." In this sense, the legislator has emphasized the importance of this right by the law mentioned. As this importance and consequently the protection of the right to free expression becomes effective, the legislator within par. 4 art. 30 of the Constitution added that " No publication can be suppressed" In the present case, by applying the precautionary measure of seizure, there is a cessation of the company's activity. However, by applying in such a manner as the one in question, the measure of seizure over the goods used for printing the press or the goods through which radio or TV broadcasts are broadcast would mean the dissolution of the media as a matter of fact,which would be contrary to art. 30 of the Constitution on freedom of expression, that forbids the suppression of a publication.
In such a situation, the seizure measure acquires the character of a complementary punishment, applied in relation to the nature and gravity of a crime and not in relation to the state of danger generated by the good left to the owner use. However, as I have recalled, the nature of a procedural measure such as seizure must be a precautionary measure and not a reparation 4 or sanction one. According to the effects it produces in the present situation, these finalities are overcome, being corroborated even by an undermining of the right to free expression, right stated in art. 30 of the Constitution of Romania. 3 Doctoral Professor Nicolae Volonciu (scientific coordinator), the new Code of Criminal Procedure, commented, Hamangiu Printing House, Bucharest, 2014, page 5694 Ion Neagu, Criminal Procedure Treaty, General Part, second edition revised and added, Universul Juridic, Bucharest, 2010, p.623
In addition to the above-mentioned issues, I consider that the application of the precautionary measure in the case deducted for trial, taking into account the concrete aspects of the case, requires the application of the norms stated in art. 10 of the European Convention on Human Rights.
Thus, in the view of the European Court of Human Rights, freedom of expression has been stressed as one of the essential foundations of a democratic society, one of the prime conditions of its progress and of the fulfillment of each individual 5 .
According to the European Court of Human Rights, the right to free expression is not an absolute one, on the contrary, it has some limitations or interferences. However, under paragraph 2 of Art. 10 ECHR, the derogatory clause becomes effective allowing the interference of the state authorities with the right to free expression, provided that three conditions are cumulatively complied with: the interference is provided by law, it refers to one of the explicit legitimate purposes provided by art. 10, the interference is necessary in a democratic society. Even in a superficial analysis, it is very obvious that the requirement for interference to be provided by law is not fulfilled. I say this because the Fundamental Law of the Romanian State, in Article 30, iterates the forbiddance on the suppression of a publication and guarantees this freedom of expression. The Constitution merely frames this right to free expression by an interference like that of suppression, which in fact happens in the case presented for trial.
Therefore the interference cannot be received in such a situation. More than that, if we look further at the condition that the interference should address one of the express legitimate purposes provided by art. 10 of the European Convention on Human Rights, we will see that they are not in line with the facts. For this measure to meet the legal requirements, in terms of interference, it should be necessary in a democratic society, for national security, territorial integrity or public security, defense of order and crime prevention, protection of health or morals, protection of reputation or the rights of others, in order to prevent the disclosure of confidential information or to guarantee the authority and impartiality of the judiciary.
But just by pointing out that the facts for which I am accused are supposed to have been committed almost 10 years ago, I do not think that the occurrence of one of the above- mentioned purposes, and stipulated by the Convention, is becoming quite improper. And taking into account the third criterion that the measure is necessary in a democratic society, it is clear that this requirement is not met by the interference in question. First of all, we fall into perfect antinomy if we put at the same level the necessary character of the measure in a democratic society and the interference - by suppressing the right to free expression. If a democratic society starts somewhere, it starts with the right to free expression. If it ends somewhere, certainly the beginning of the end comes from the suppression of this right to free expression.
As I have presented and explained the elements in question, it is very easy to see that not even one of the requirements imposed by art. 259 Code of Criminal Procedure, the European Convention on Human Rights or by the practices of the European Court of Human Rights is met, so an interference like that in the pending case is not at all justified and is contrary to some fundamental/basic rights and principles. 5 CEDO.hot. Muller; CEDO hot.Handyside;
Taking into account all the iterated aspects, which actually start from a tax problem, I am asking you, by this petition, the support for the resolution of the situation I am facing. At the same time, considering the issues raised, I think that it is absolutely useful that ANAF provide the following information:
1. To state unequivocally which of the provisions of the Tax/Fiscal Code are used in the determination of the damage and what are the methods applicable to the analyzed situation:
a. If we are in the situation of applying Article 11 paragraph 1 of the Fiscal Code (correlated with its Implementing Rules at the time of transactions), by which the form of a transaction is re-shaped/reconsidered to reflect its economic content, and if so:
i. To specify what is the new economic content of the reconsidered transaction and how the differences are calculated in this case. To specify whether in 2007 (according to the applicable law) the reconsideration of the transactions was applicable to Romanian affiliated legal entities.
ii. To specify why the provisions of art. 22 of the Implementing Rules of the Fiscal Code, which clearly stipulate that "Romanian tax authorities may, for the purposes of calculating the tax obligations of affiliated persons, reconsider the records of the affiliated person in Romania for the purposes of tax examination if, following the special relationship between the Romanian affiliated person and the foreign one these records do not reflect the real taxable profits coming from Romania. There is no reconsideration of the records of the affiliated persons when the transactions between such persons take place in commercial free market terms, as well as in the case of transactions between affiliated Romanian legal entities "considering that throughout the control/check documents it is specified that TRANSACTION WAS CARRIED OUT TO A PRICE THAT IS NOT A MARKET PRICE
iii. Why the Minutes drawn up by ANAF Brasov (2007) and the Anti-Fraud Division of Bucharest (2008) carried out in "in order to establish
the fiscal status on license operations", from which it was found that the transactions were correctly recorded, quantified and accounted for in the accounting", why they were not analyzed and taken into consideration and not even mentioned in the Minutes forwarded to the Criminal Prosecution Bodies?
b. If we are in the situation of applying Article 11 paragraph 2 of the Fiscal Code (correlated with its Implementing Rules at the time of transactions), whereby "in a transaction between affiliated persons, tax authorities may adjust the amount of income or expense of any of the persons, as necessary, to reflect the market price of the goods or services provided in the transaction.
When determining the market price of transactions between affiliated persons, the most appropriate of the following methods shall be used:
a) the price comparison method whereby the market price is determined on the basis of the prices paid to other persons selling comparable goods or services to independent persons; if so:
i. Why there were not taken into account all tax practice, Decision 3/20012 of the Central Tax Commission, which states that until 14 May 2010 the prices between affiliated legal entities are not recalculated and they went for the estimated calculation of a price, the so-called market price using a method that exceeds the legal framework, ie it is not stipulated in the Fiscal Code?
2. What was the applicable law on the reconsideration of transactions under Art. (both paragraphs) of the Fiscal Code, corroborated with the provisions of its Implementing Rules (Article 22) in 2007, both in terms of tax on profit and VAT.
