Claudiu Vrinceanu6 Sep 2012

Avocat: Doar riscul fiscal este proportional cu dimensiunea afacerii. Nevoile sunt aceleasi

The needs of small and medium-sized undertakings are similar to those of very big companies in relation to the tax assistance services, because the fiscal law and procedure do not differ much according to the size criterion, says the attorney-at-law Luisiana Dobrinescu, one of the founders of Dobrinescu Dobrev law firm.

Only the tax risk is proportional to the size of the business, but for lawyers solving the legal issues requires the same consumption of energy. “We search with the same level of involvement to avoid tax errors that may lead to the insolvency of a taxpayer, whether it involves tax debts amounting to RON 500,000 or RON 500,000,000 and we do not seek success fees relying only on the pecuniary size of the case. We deem that an inspired legal solving should be rewarded as a success, and not a standard settlement of a debt no matter how huge it may be”, stated Luisiana Dobrinescu.

Besides, the big size of the debts claimed by the National Agency for Fiscal Administration from big taxpayers has become a common benchmark for lawyers. According to Luisiana Dobrinescu, the small and medium-sized undertakings enjoy beyond doubt much bigger freedom in choosing the lawyer or the tax consultant, and they often launch redoubtable challenges for the lawyer. “Big firms manifest instead general group options and direct them mainly towards the big names on the business attorneyship market, where is too early for us for the moment to come with offers.”

On the whole, the tax attorneyship field is developing on a constant basis due to the campaigns organized by the National Agency for Fiscal Administration for collecting the taxes and contributions to the budget, but also in the context of the increased number of legislative changes. According to the lawyers at Dobrinescu Dobrev, a cause for litigation is also the refusal almost in principle of the administrative jurisdictions to favourably settle the tax and administrative appeals during the prior procedure, when the taxpayer is right. This way, almost all tax disputes get on the already overfull dockets of the courts of law where they are subject to trail on the merits and mandatorily also to appeal, also because the legal counsellors of the National Agency for Fiscal Administration have the work duty to go right to the bitter end. Besides, in the opinion of Luisiana Dobrinescu, it is easily remarkable the tendency of the law firms to set up tax litigation departments – although there are few lawyers trained in this field in which assistance is often given by persons that do not have a legal profession (economists, accountants, tax consultants).

The political and legislative vertigo encouraged the tax attorneyship

Luisiana Dobrinescu notes with a sense of black humour that the political and legislative vertigo, as well as the practical dilemmas in enforcing the fiscal law in Romania encouraged the tax attorneyship, when these did not make it practically impossible! “We would want the tax policies in Romania to consolidate in time, so that the tax attorneyship would solve the delicate issues in the interpretation and implementation of the law and not common cases involving abuses, unlawfulness, surprising arguments and sophisms, as we note during the inspections carried out in Romania. For instance, we are astonished and at the same time inspired by the levels of complexity and nuances involved by the tax litigation in the Netherlands and in Great Britain, for which we do not find a correspondent here”.

Luisiana Dobrinescu founded Dobrinescu Dobrev SCA together with two former attorneys-at-law who worked for Biris Goran law firm, Ionut Dobrinescu and Dumitru Dobrev. “The organization in our own law firm came for us as a natural thing, our mentality towards independence evolving rather slowly and with no adventures. When we felt to be enough mature, after many years of exercise of our profession as associates next to valuable experts, we simply left forming an already operational and verified core.” Dumitru Dobrev, the eldest of the three attorneys-at-law, was the first to leave and he also suggested becoming associates in a law firm. “He did not come with an offer, he would only stir up a hidden desire in each of us, and so in only a few days, we took the plunge in June. Starting with July 1st our law firm was already authorized by the Bar”, stated Luisiana Dobrinescu.

Within Biris Goran, the three lawyers generated some major projects. For instance, one of them is the VAT in case of natural persons, for real estate transactions concluded before 2010. All three analyzed this difficult problem a lot, got well documented and even wrote a few specialized articles. “The tax disputes were generated right from the fiscal inspection phase. I would come with the frustration of the fiscal inspections, during which the National Agency for Fiscal Administration applied its internal circular letters without much discussion (although I knew well that the solution was a political, rather than technical one). Ionut (our note: the attorney-at-law Ionut Dobrinescu, her husband) came with the idea to raise a plea of illegality, and Dumitru Dobrev contributed with the relevant case law, and in particular in relation to the certain taxation and the principles for interpretation the fiscal law. Working for Biris Goran, we determined the High Court of Cassation and Justice at the European Court of Justice to ask a preliminary question to the Court of Justice of the European Union with respect to the manner to compute the VAT for real estate transactions”, added Luisiana Dobrinescu.

Where do we find the most harmonious fiscal system?

What is the meaning of a harmonious and efficient fiscal system in the opinion of a business lawyer? According to Luisiana Dobrinescu, attorney-at-law at Dobrinescu Dobrev, only the degree of civilization and the political stability on the long term give rise to harmonious and efficient collection systems, but do not bet to see the speculative capital moving in such areas, but rather in opposite directions.

In Norway, for instance, the fiscal system is as harmonious and efficient as oppressive: the country does not feel the need to join the European Union, but nor is it an Eldorado for speculators. Great Britain is also a good example of complex and efficient taxation.

Furthermore, the challenges and opportunities are at empire borders where the business lawyers have a lot of work to do. “Romania was such a border in the years of real estate boom, when it certainly was not the harmony of the fiscal system the one to give rise to incredible opportunities for enrichment, both for the speculators and for their consultants. As things settle down, the attorneyship comes to maturity as well. We are passing through such a phase right now.”