COMBATION CONCERNING THE TAX EVASION IN ROMANIA (English version)

As a fundamental duty, Art. 53 paragraph 1 of the Romanian Constitution stipulates that citizens have an obligation to contribute through taxes, public expenditure. Public expenditures for interest or national community as a whole insofar as they relate to general government financial burdens or administrative-territorial autonomous communities, where it refers to expenses are in the care of local government. Contributing citizens in public spending is done by paying taxes. In accordance with art. 138 of the Romanian Constitution, taxes can only be established by law. Constitutional provision, that requirement is established only by law establish (and not by decisions of the executive authority) of taxes and other revenues that support state budget and state social insurance budget, constitute an implicit guarantee of the right property, the property of all citizens. More specifically, it should be noted that issues taxable and tax are both individuals and legal entities. The guarantee is also present in case of legal persons, since they pay taxes, they are actually incurred by individuals, the benefit of that legal person which operates. Concerning local taxes, they are set by local councils or county, and within the law as an expression of the principle of local autonomy enshrined in art.119 of the Constitution. The concept of the national budget is the synthetic of four different legal institutions, namely: the state budget, state social insurance budget, local budgets and special funds budgets. State revenues consist of all monetary resources established by law, contributing to the formation of its money funds. Due to this reason state revenues make up a whole, known as the system of budget revenues. Tax is compulsory payment made by individuals and legal entities to state on the central or local, definitively and without direct consideration in accordance with the law. Since the objective of science policy and practice in any country is tax financial, scientific name of tax law and thus its rules, can not be based only on defining the legal nature of the tax itself. In this regard, it is undeniable that tax, as a unilateral act of state is the direct consequence of the exercise of state sovereignty. Tax is a mandatory staff report, public, arising from a person belonging to a particular state, which is the legal relationship of nationality. Tax is legal and moral support taxpayer participation in general and special benefits deriving from the society, economy and state activity. Tax is legal obligation incurred without the consent of the taxpayer. Nevertheless, the legal relationship of the tax life does not end the act of entry into force of tax law (which in reality is only set), but is supplemented by the establishment of contributory capacity of people who owe it and through proper charging. All these details prior to the concept of tax are necessary for a deeper understanding of the concept precisely because tax evasion (if any fee, contribution or other amounts owed to the state) is its main objective. In these circumstances we can define tax avoidance as licit or illicit whole process by which those interested can escape in all or part of their material obligations under the tax laws.3 Besides the spirit of fraud increase interest simply play whatever tax rate put in question, there are other interests that can push honest taxpayer until then at a certain dissimulation. Tax evasion is the logical result of flaws and inconsistencies and bad legislation , faulty application methods and of the lack of expertise and excessive taxation which the legislature is just as guilty as those whom thereby causing the evasion . Close correlation is evident between these two facts, excessive share of tax. When burdens press too hard on a taxable material it tends to escape. It is an economic reflection that removing the capital tax would impose too much, an excessive tax rout tax matters. Fiscal fines will not make the taxpayer to declare their income , but he will be surrounded by more detailed precautions to escape his obligations to the state. There is a psychology of the taxpayer to pay only what he can pay. This mentality exists at the most honest man,who would never think to touch his neighbour’s property, will escape from the tax authorities of their duties without hesitation. Human nature has always tended to put the public interest behind the private interest. It is more inclined to consider tax as a loss than a legitimate contribution to public expenditure and to see with his eyes always one who wants to reduce property. To defraud the IRS is considered as a test of skill rather than dishonor, to pay the IRS claim is an evidence of naivety and not of integrity. After 1990, tax evasion was regulated by Law no. 87/1994, subsequently repealed by Law no. 241/2005 on preventing and combating tax evasion, but also by other acts which refer to tax evasion, such as: Accounting Law no. 82/1992 as amended, Act no. 64/1999 on fiscal control, Ord. 26/1993 and Ord. 70/1994 on the consolidated tax evasion. To current legislation, Law no. 87/1994 raised several issues regarding the existence of inaccurate expressions or provide ways to commit crimes, difficult to distinguish from the offenses covered by the same legislative act. These inadequacies of the Law 87/1994 have been added to unitary law courts, so that legislative change was imperative. Law no. 241/2005 from the first article brings four new items: -establishes measures to prevent tax evasion -new crimes are called offenses established in connection with the crime of tax evasion -more actions are incriminated as more dangerous crimes -more terms used by law have a greater accuracy. Law no. 241/2005 states the actions which are punishable as criminal acts, among them being: not restoring the destroyed documents, refusing submission of documents, to prevent checks, withholding, illegal reimbursements, etc..4 Jurisdiction within the prosecution in cases covering acts of tax evasion is determined by the amount stolen as a result of acts committed and quality of the perpetrator. Subject to the criminal law by the Law no. 241/2005 is forming social relationships that provide full determination and in accordance with legal, tax and other contributions by taxpayers due to the state natural or legal persons, Romanian or foreign, and ensure the timely fulfillment of all obligations set of tax legislature. Active subject of these crimes is the taxpayer - individual or legal and liability issue is the state, represented by the Ministry of Finance or representative body control. In terms of the objective side, offenses under Law no. 241/2005 are in the majority committee, but are punished, and some omissions were intentional, direct or indirect, in various forms of participation. If the Romanian legislature has chosen to apply the fiscal taxation authoritarian model, which relies on criminal repression, at European level in relation to technical criminal litigation, and implicit in tax evasion, was adopted the liberal model, characterized by mistrust criminal repression and support of alternative ways of conflict settlement and transferring criminal behavior ,in the sphere of administrative offenses.