The thorny problem of how to calculate the period of five calendar days, in which invoices must be sent in the e-Invoice system, was “solved” by the Ministry of Finance (MF) through a simple post on Facebook. But this clarification has no real value for taxpayers, according to experts.

The clarification posted by the Ministry of Finance on its Facebook page, in relation to the transmission of invoices in e-Invoice, is in line with the interpretation that Cristina Săulescu from Cabot TP told us. Namely that the first day of the five calendar day period is the day after the invoice is issued, while the fifth day is effectively the last, without adding an additional day.

However, a simple post on a social network has no real value, from the perspective of the taxpayers’ relationship with the MF and the National Tax Administration Agency (ANAF), but an assumed official document is needed. This means at least a press release published on the website of the ministry or ANAF, if not a normative act. We also comment on the subject with Cristina Săulescu, Partner at Cabot TP.

1. How much can the MF clarification on Facebook weigh in a tax audit?



Cristina Săulescu: “We live in the era of digitization, really, and they say that if you’re not on social networks, you don’t have an account on social networks, you don’t exist. However, this thinking should not be found in public authorities. In particular, the MF and ANAF, their control bodies, must rely only on legislation and official communiques that are opposable to all, being published on their official pages. Facebook is a social network, not even a professional network, and a communication posted only on the page here cannot replace an official document.

2. How much can the MF clarification from Facebook weigh if it even comes to a court case?



Cristina Săulescu: “And in court, only elements that appear in official acts and documents must be taken into account. I don’t think that in court, if it comes to this, information from social networks will be taken into account, more than in the administrative procedure of appeals. Just as, when the court considers an expertise necessary, it can only be taken into account if it is carried out by accredited experts, in the same way information should only be considered valid if it comes through official channels: the Official Gazette, communiqués and official information assumed by the institutions by publishing them on their official pages.”

3. How can taxpayers protect themselves from a possible unpleasant surprise during a tax audit?



Cristina Săulescu: “In the absence of an official public document, a personal written answer (from MF/ANAF – n. ed.) can be opposed to the control bodies.”

4. What should the Ministry of Finance do so that this clarification posted on Facebook has an indisputable value in the context of tax audits and disputes?



Cristina Săulescu: “In order for this clarification to have an indisputable value in the framework of fiscal controls and litigation, it should be taken up in an official communication. In my opinion, the inclusion of this clarification in the e-Invoice legislation, through a normative act, would be ideal, but even an official statement posted on the institution’s page could be sufficient. However, as long as it remains at the level of posting on a social network, the clarification cannot be legally binding and leaves room for abusive interpretations.”

Article published in Avocatnet.ro