Changes in the control activity of the General Directorate for Anti-Fraud (‘DGAF’) brought by Order No. 128/2025

The National Agency for Fiscal Administration ("ANAF") has published in the Official Gazette Order no. 128/2025 regarding the approval of the model and content of the forms and documents used in the control activity of the General Directorate for Fiscal Anti-Fraud, which introduces some changes regarding the control activity of DGAF ("the Order").

Order 128/2025 introduces significant modifications aimed at ensuring compliance with legal procedures and eliminating procedural gaps, and failure to adhere to these can lead to severe consequences for taxpayers, resulting in imprisonment ranging from 1 to 6 years.

1. LEGISLATIVE CONTEXT

Regarding the rationale for adopting the Order, it was considered that in numerous situations, during inspections, the taxpayer does not respond to the requests of the anti-fraud inspectors to present documents for the purpose of conducting/continuing the checks, a request made through the "Invitation" form, resulting in the drafting of reports to the criminal prosecution authorities.

Thus, ANAF argues that this measure is justified by the need to streamline inspections and prevent blockages caused by taxpayers' refusal to provide the requested documents.

2. MAIN MODIFICATION - INTRODUCTION OF THE SUMMONS

Compared to the previous regulation, under which taxpayers were contacted by anti-fraud inspectors through a document titled "Invitation," requesting the presentation of relevant documents for tax checks, the new regulation stipulates that those who ignore the "Invitation" will subsequently receive a "Summons," requiring them to appear at the institution's headquarters.

The summons represents the document through which the legal representative of a taxpayer/payer is summoned to appear, for the purpose of conducting/continuing the inspection, at the headquarters of the General/Regional Directorate for Fiscal Anti-Fraud.

The Order states that the summons is drawn up in cases where the taxpayer/payer has not responded, explicitly or implicitly, in whole or in part, to the invitation of the anti-fraud inspectors for conducting/continuing the audit, thereby unjustifiably refusing to present the legal documents and assets necessary to establish the fiscal situation, with the aim of obstructing financial or tax checks.

The introduction of the vague term "implicitly" – "(...) it is drawn up when the taxpayer/payer has not responded, explicitly or implicitly (...)" – leaves room for abusive interpretations. Currently, if a taxpayer cannot clearly prove that they did not receive the summons, it is considered that they have "implicitly" refused to cooperate with ANAF.

The new ANAF Order treats any delay in providing documents as an attempt at tax fraud, eliminating any presumption of good faith of taxpayers recognized by the Tax Procedure Code.

• Consequences of non-compliance with the Summons: Imprisonment from 1 to 6 years

The Order stipulates that if taxpayers do not comply with the request of anti-fraud inspectors to present the necessary documents for establishing the fiscal situation within 15 days of the summons notification, the provisions of Article 4 of Law No. 241/2005 for the prevention and combating of tax evasion, with subsequent amendments and completions, apply.

According to Article 4 of Law No. 241/2005: "The unjustified refusal of a person to present the legal documents and assets to the competent authorities, with the aim of obstructing financial, tax, or customs checks, within a maximum of 15 days from the summons constitutes a crime and is punishable by imprisonment from one year to six years."

Thus, the summons – a document with legal power – obliges the taxpayer to respond within a maximum of 15 days. Failure to respond to the summons is no longer just a bureaucratic omission but becomes a crime punishable by imprisonment from 1 to 6 years.

• Vulnerabilities in practical applicability

Among the main vulnerabilities in the applicability of the new regulation regarding the introduction of the summons are the lack of a clear mechanism for confirming the receipt of the summons (i.e., there is a need for certain proof that the document was received directly by the recipient), the impossibility of contesting it before taxpayers are taken to court, as well as an excessively short compliance period.

3. OTHER MODIFICATIONS

The new procedure brings significant changes to the way tax inspections are conducted. The minutes prepared by anti-fraud inspectors will now include more precise details about:

• The methods for determining additional taxable bases;
• The calculation of additional tax claims, broken down by tax periods;
• The taxes, fees, and contributions owed to the state budget.

Thus, taxpayers will have access to clear details regarding the taxes, levies, and other financial obligations owed to the state budget.

Another essential modification is that anti-fraud inspectors can request written explanations from the taxpayer, both during the inspections and after the completion of the audit. These notes are crucial for formulating precise questions and addressing any contradictory statements.

If the individuals involved refuse to respond, the inspectors will issue an official explanatory note with a deadline for response. If the deadline is not met, the situation will be recorded in the audit minutes, and legal measures will be applied accordingly.

Additionally, according to the new regulations, the findings of anti-fraud inspectors must be supported by original documents or certified copies, as well as other material evidence.

CONCLUSIONS

In conclusion, Order 128/2025 transforms the relationship between ANAF and taxpayers into a much more coercive one. While previously invitations to ANAF could be ignored without major repercussions, from now on, each summons becomes a legal obligation, and non-compliance can result in imprisonment.

We invite you to contact our consultants with confidence in order to obtain more information on the provisions of this normative act, as well as its applicability for your business.