The practice of gambling in 2021
The practice of operative and unexpected or thematic control in gambling activity
The organizers of traditional gambling are going through, during this period, one of the most difficult moments ever experienced, in the exploitation of the activity, doubled by a total uncertainty regarding the present but especially the future, waiting with fear and helplessness for tomorrow, a day that it could mean dashing any hopes of recovering the losses caused by state-imposed restrictions but also possible disastrous consequences of an almost unavoidable bankruptcy. And, because it is said that troubles never come alone, the icing on the cake is added to them, ie they are obliged to bear the consequences of some controls of the authorities and which, in most cases, as the organizers say, turn into real actions. harassment, intimidation or harassment, by imposing arbitrary tax decisions or measures that have no correspondent in their economic and fiscal reality. There would be nothing to blame or anything to dispute if these controls were carried out only within the legal limits of competence and if the objectives of control did not often fall within the area of competence conferred by law exclusively on tax authorities.
We know with certainty that the control activity, carried out by the National Office for Gambling (ONJN), must be carried out and subject to the special legal regulations in force, and that it must be carried out by the competent personnel. , within the Office, permanently, either in the form of operational and unexpected or thematic control, as the case may be, and the result of the findings must be recorded in the administrative control acts, only for the competence objectives: establishing the state of affairs; finding and sanctioning contraventions; ascertaining the circumstances regarding the commission of certain deeds provided by the criminal law, notifying the competent bodies, according to the legal provisions.
We also know that the administrative acts of operational and unannounced control must be communicated, depending on the findings recorded: to the specialized department within the Office – with responsibilities in ensuring the secretariat of the Supervisory Committee; the fiscal bodies competent in the administration, from the fiscal point of view, of the operators subject to control; the general directorates of public finances in whose territorial area the registered office of the controlled economic operator is located, for taking fiscal measures; criminal investigation bodies. It is unfortunate that the implementation of these legal provisions was not achieved by adopting an Order of the President of the Office, as provided in art. 5*2 of GEO 20/2013, where to be clearly established and without the possibility of arbitrary interpretation, the control procedure, in order to correlate with other incidental legal provisions.
At the same time, it must be emphasized categorically and without any doubt that the law has established, without any other possible interpretations, that the objectives of control must be achieved within the limits of their competence, hence as clearly as possible. and without any doubt, that the special legal norm in force has never entrusted the control staff of the ONJN with the accomplishment of the fiscal control of the budgetary receivables. This attribute belongs exclusively to the fiscal body which, through the fiscal administrative act issued in the exercise of the attributions of administration of taxes and fees, establishes the individual situations in order to produce legal effects towards the one to whom it is addressed.
The exclusivity of the fiscal control, on the individual fiscal situations, is provided in the Fiscal Procedure Code and the form in which these fiscal controls can be carried out are: the fiscal inspection and the unexpected control.
The competence of the fiscal control has been entrusted, according to the Fiscal Procedure Code, exclusively to the two fiscal authorities, as follows: 1. the fiscal inspection, which is exercised exclusively, directly and unrestricted by the competent fiscal bodies, called fiscal inspection bodies; unexpectedly, which is carried out by civil servants within the General Directorate of Fiscal Anti-Fraud, in accordance with the law.
This exclusivity, granted to establish the competence of the fiscal control, was objectively necessary for the implementation of the fiscal norms regarding: the fact that the provisions of the fiscal legislation are interpreted by each other, giving to each the meaning resulting from the whole law; the fact that the provisions of the fiscal legislation susceptible of several meanings are interpreted in the sense in which they correspond best to the object and purpose of the law; the fact that, after the application of the rules of interpretation provided, the provisions of the tax legislation remain unclear, they are interpreted in favor of the taxpayer; the fact that the factual situations, relevant from the fiscal point of view, are assessed by the fiscal body in accordance with their economic reality, determined based on the evidence administered under the conditions provided by law and when there are differences between the fund or economic nature of an operation or transaction and its legal form, the fiscal body appreciates these operations or transactions, respecting their economic fund; the fact that the fiscal body establishes the fiscal treatment of an operation taking into account only the provisions of the fiscal legislation, the fiscal treatment not being influenced by the fact that the respective operation fulfills or not the requirements of other legal provisions.
It is significant, in this sense, Decision 783/2019 / M.Of. 120 of 17-Feb-2020, of the Constitutional Court of Romania, generally binding decision on the consequences of operational and unannounced fiscal control, performed by civil servants within the General Directorate of Fiscal Anti-Fraud, with clear and comprehensive explanations on administrative acts and legal regime of them, as follows:
– the report for ascertaining and sanctioning the contraventions is the act of ascertaining a violation and of applying a sanction even by the control body, being subject to the provisions of the Government Ordinance no. 2/2001 regarding the legal regime of contraventions, approved with modifications and completions by Law no. 180/2002, with subsequent amendments and completions;
– the control report for establishing the state of affairs, on the occasion of the operative and unexpected control, for ascertaining some factual and documentary situations, existing at a given moment, for establishing the fiscal state of affairs and for establishing their fiscal implications. The findings of the inspectors, resulting from an operative and unexpected control action, are capitalized according to the nature of the findings and the objective of the control, and the report is communicated to the taxpayer, according to the provisions of Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions.
This category of minutes represents simple acts of finding that do not produce legal effects by themselves, and will be capitalized later by issuing a fiscal act.
The inspectors, invested with the exercise of public authority, are entitled to verify the legality of the activities carried out, the existence and authenticity of supporting documents in the activities of services, to legitimize and establish the identity of the administrators of controlled entities, to apply the measures provided by legal norms in order to capitalize on the findings.
At the end of the operative and unexpected control performed by the inspectors, control minutes/control acts are concluded, during which findings are made on a factual situation from the period of operation of the company. However, this report is not issued in the exercise of the attributions of administration of taxes, fees and social contributions, but in the exercise of the thematic control attributions, following the ascertainment, analysis and evaluation of a specific fiscal risk of one or more determined economic activities.
Therefore, the inspection report drawn up by the inspectors is not such as to produce legal effects in itself against the audited entity and does not establish tax claims against it, so that, regardless of the findings in it, it is only a preliminary act. legal acts to be drawn up, whether they are of a fiscal or criminal nature.
Therefore, the minutes drawn up by the anti-fraud inspectors do not individualize tax claims, the possible damages being only estimated, and as long as a debt title has not been issued by which, according to the law, to establish and individualize the tax claim, it cannot be argued that the control report proves a certain, liquid and due claim on the taxpayer’s patrimony.
The Court finds that the unannounced inspection report concluded by the anti-fraud bodies / inspectors does not establish the taxpayer’s tax debts, but only records certain facts and estimates possible damages, being considered a simple means of proof to be used by the tax authorities. tax inspection and / or criminal investigation. In situations where, through the minutes, the control bodies do not estimate, but establish fiscal obligations, imposing on the taxpayers the obligation to pay them, we can no longer talk about a simple administrative operation, but about a real fiscal administrative act. However, in view of the above, the Court considers that only on the basis of a debt document, based on those recorded and retained in the control report, the taxpayer can be held liable for the payment of sums to the state budget, in this way ensuring, at the same time, the effective possibility of the taxpayers to contest the content of the respective minutes.
We find the same interpretation in Decision 2/2018 M.Of. 178 of 26-Feb-2018 of the High Court of Cassation and Justice through the Panel for resolving legal issues, which underlines the fact that: “The quasi-unanimous jurisprudential opinion is in the sense that the report drawn up by the anti-fraud inspectors on the occasion of the current, operative and unexpected control or of the thematic control does not meet the characteristic features of a fiscal administrative act, but only finds some factual and documentary situations for establishing the fiscal state of affairs or finds some circumstances regarding the commission of deeds provided by the criminal law and their fiscal implications. As it does not have the character of a fiscal administrative act, as it does not give rise to, extinguish or modify legal relations of a fiscal nature, it cannot be attacked separately, but only together with the administrative act that precedes it.”
The conclusions that can be drawn, after reviewing the above notes, can be summarized as follows:
1. The special regulation of gambling does not entrust the competence of the control staff within the ONJN, in the field of fiscal control, not even in the form of evidence for the tax inspection, which means that the administrative act drawn up by them cannot include either any kind of records or observations regarding: the level or basis of taxation; payment terms; measures on the correction of taxes and duties established on the basis of a tax return (self-taxation);
2. The administrative act, which contains any of the elements specific to fiscal control, is null and void, because it is issued in violation of the legal provisions on jurisdiction, as provided in Article 49 of the Code of Fiscal Procedure;
3. The nullity can be ascertained by the competent fiscal body or by the body for resolving the appeal, upon request or ex officio. In practice, if payment amounts, payment deadlines or requests to amend tax returns are imposed on gambling organizers, contained in either a decision of the ONJN Supervisory Committee (decisions on granting licenses, authorizations, etc.) or in the administrative acts of the control staff, their nullity must be ascertained as follows:
– ex officio, by the ONJN Supervisory Committee;
– ex officio by the competent fiscal body, which issues a decision that is communicated to the taxpayer;
– at the request of the gambling organizer, by the ONJN Supervisory Committee;
– at the request of the gambling organizer, by the competent fiscal body, which issues a decision that is communicated to the taxpayer.
Such administrative acts, which contain provisions for measures against the taxpayer, with the obligation to submit declarations, in accordance with decisions of the Supervisory Committee, to draw up corrective statements and/or to pay debts established by ONJN or ONJN inspectors, become by their content, fiscal administrative acts being susceptible to be challenged in administrative contentious (after going through the appeal procedure, where legally they should be annulled). The court should annul such a provision of measures as being issued in the absence of a legal basis and by an authority which does not have jurisdiction to issue such an act.
By a final and general conclusion, it can be stated that any decision, administrative act or provisions of measures, issued by the representatives of ONJN, which establish, in charge of the gambling organizer, obligations regarding the submission of tax returns, corrective statements, or deadlines are set for the payment of implicit tax obligations, it is illegal, due to the fact that these administrative acts turn, a simple means of establishing a state of affairs, into a real tax administrative act, producing legal effects, contrary incidental legal provisions and contrary to the mandatory jurisprudence of the Constitutional Court of Romania and respectively of the High Court of Cassation and Justice.
Therefore, in an unexpected operational or thematic control, ONJN inspectors can order only those measures provided, limited by GEO 20/2013 and GD 298 of 2013, and if the gambling organizer finds that the administrative act drawn up exceeds, partially or totally, the limit of the competences provided by law and in the conditions in which the competent fiscal body or the body for solving the appeal, upon request or ex officio, does not declare null these administrative acts, must attack them in administrative contentious. The legal provision may also be invoked in the contentious court according to which the actions may be formulated personally against the person who contributed to the elaboration, issuance, adoption or conclusion of the act or, as the case may be, who is guilty of refusing to resolve the request. as a subjective right or a legitimate interest, if compensation is requested for the damage caused or for delay. If the action is admitted, the person concerned may be obliged to pay compensation, jointly and severally with the defendant public authority.
We return, in the following issues of the magazine, with other opinions on the activity of gambling…