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Draft / Employers who do not pay employees’ contributions to state budget are at risk of up to 6 years of imprisonment

de Vladimir Ionescu , 11.12.2017

The intentional non-payment of taxes and contributions due to the budget, subject to the withholding regime, will be considered a tax evasion, according to a draft emergency ordinance that is under the public debate on the website of the Ministry of Finance.

This act will be punished by imprisonment from one to six years.

The document criminalizes, as an act of tax evasion, the failure to retain and collect, the withholding and failure to pay, respectively, the collection and failure to pay taxes and contributions, in whole or in part, intentionally, within maximum 30 days from the due date established by law.

The draft introduces the circumstance related to the criminalization of the withholding and non-payment for persons who had the financial resource needed for the payment but used the money collected or withheld for the paying other debts than those established by law.

To ensure the predictability of the criminality rule, 32 categories of taxes and contributions subject to the withholding or collection and the payment regime have been introduced in the Annex to the draft ordinance, specifying the legislation and the articles that regulate them, including:

  • income tax on wages and salaries
  • income tax on pensions
  • income tax on intellectual property rights
  • income tax on rural lease
  • tax on interest and dividend
  • tax on income from prizes and gambling
  • social security contribution payable by individuals who earn wages and income assimilated to salaries
  • social health insurance contribution payable by individuals who earn wages and income assimilated to salaries

The text incriminating this act (article 6 of the Law on evasion) has been declared unconstitutional by a CCR decision in 2015 on the grounds that the provision in question does not comply with constitutional requirements regarding the quality of the law, namely it does not meet the requirements of clarity, precision, predictability and accessibility.

Since then, though, the wording has not been changed, so these facts have been decriminalised.

Mihai Tudose government does that in the context of transferring social contributions to the employee, and invoking several reasons, among which:

  • the need to reform public social systems in Romania, to increase the revenue collection to the state social insurance budget and make employers accountable for the timely payment of mandatory social contributions that both they and employees owe
  • the need to make employers accountable for the timely payment of the mandatory social contributions, given that by reforming public social systems in Romania through the Government Emergency Ordinance 79/2017 amending and supplementing Law 227/2015 on the Tax Code, the tax burden of the social security contribution and the social health insurance contribution has been entirely transferred to the employee, and the employer will continue to establish, withhold, declare and pay the due obligations.
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