Through Decision no. 410 of January 27, 2026, of the High Court of Cassation and Justice — Administrative and Fiscal Litigation Section, published in Official Gazette no. 447 of May 27, 2026, the Court clarified the consequences of the tax authority’s omission to organize the final discussion with the taxpayer before issuing the tax assessment decision.
What does it stipulate?
The High Court established that the tax inspection body’s failure to fulfill its obligation to organize the final discussion with the taxpayer entails relative, not absolute, nullity of the tax assessment decision. In business terms, this means that the mere finding of the absence of this procedure is not sufficient to automatically annul the administrative fiscal act. The company contesting the decision must demonstrate in court that this omission caused it concrete harm that could not have been remedied otherwise.
Proof of harm thus becomes the central element in contesting the act. The company must argue and prove what exactly it could have presented or clarified during the final discussion and how these new elements (documents, explanations, legal arguments) could have changed the conclusions of the tax inspectors. Practically, the burden of demonstrating that the right to defense was effectively violated, and not just formally, rests entirely with the taxpayer.
The decision consolidates a judicial practice that discourages the annulment of tax assessment decisions for procedural defects considered formal. Courts will focus on the merits of the case and the real impact of procedural errors, not just on their mere existence. Thus, companies’ defense strategy in tax litigation must be much more focused on substantive arguments regarding the taxes and duties established, not just on identifying procedural errors of the authorities.
To whom does it apply?
The decision has a direct impact on all legal entities and natural persons (companies, sole proprietorships, liberal professions) subject to a general or partial tax inspection, regardless of industry or field of activity. The provisions are relevant for financial departments, general managers, and tax consultants who manage the relationship with tax authorities (ANAF).
What should you do?
- Review the strategy for approaching tax inspections, giving increased importance to preparing and submitting a detailed written point of view before the completion of the audit.
- Rigorously document any request to participate in the final discussion and prepare a complete file of arguments and evidence for this stage, in order to be able to subsequently demonstrate potential harm.
- Base any challenge against a tax assessment decision not only on the absence of the final discussion, but especially on concrete arguments demonstrating how this omission directly affected the right to defense and the outcome of the inspection.
Source: Official Gazette, Part I, no. 447 of May 27, 2026.
Note: This material is strictly for informational purposes and does not constitute legal, tax, or business advice. As the interpretation and application of legal provisions may vary significantly depending on the specific circumstances of each entity, we recommend seeking specialized legal assistance before adopting any operational decisions based on these changes.