Fighting tax evasion requires a clear text without ambigous expression, allowing a correct classification of the offence, whenever appropriate, in regulating the typical offence provided in by the law.
Unfortunately, within the Law no. 241/2005 there are some regulations, that are less clear, requiring jurisprudence and doctrine for their interpretation.
One of these is art. 6 of Law no. 241/2005 which we will analyze in the following, where the existence of intent is not apparent „ex re”.
This material is intended to give an explanation of issues concerning the legal status of facts about the crime may withhold tax evasion, punished under Art. 9 par. 1 letter of Law no. 241/2005, with the crime of smuggling and punishable under Art. 270 par. 1, 2 or 3. Our approach takes as starting points for finding that, in judiciary practice, situations in which it was retained possession, transport, manufacture or sale of excise goods (including tobacco products), or derived from knowing that smuggling by individuals, have received contradictory indictments.
Illegal operations with products subject to excise duties have spread in recent years. The proliferation of this phenomenon is favoured by the inexistence of a retort in the form of penal safeguards as it is deemed that natural persons not holding a trade licence may not be an active subject of the tax evasion offence or of the infringements set out in the Criminal Procedure Code. This interpretation has been favoured by an appeal in the interest of the law, upheld by the High Court of Cassation and Justice by decision no. LXI (61) of 24 September 2007.
Yet there are arguments towards the assimilation to traders of natural persons who perform frequent illegal transactions with products subject to excise duties and make certain taxable income, and therefore they may be active subjects of the offences and infringements in this field.