On 3 September 2026, ANAF published a draft order proposing a new procedure for establishing joint and several tax liability. It concerns circumstances in which another person may be required to pay outstanding tax liabilities alongside the principal debtor.
This analysis describes the draft as published and examined on 4 September 2026. At that date it had not been adopted or published in the Official Gazette and did not have legal effect against taxpayers. The consultation announcement invited comments until 14 September 2026. The text may change before adoption.
The draft does not create new grounds for holding directors, shareholders or others liable. Those grounds are set out in Articles 25 and 26 of the Tax Procedure Code. It proposes a more detailed administrative process for identifying the conduct, relevant period, liabilities, bad faith where required and causal connection.
What joint and several liability means
A company ordinarily pays its taxes from its own assets. Being a director or shareholder does not automatically make someone personally liable. Where statutory conditions are met, ANAF may issue an individual decision requiring another person to pay specified liabilities alongside the principal debtor.
The amount established can be pursued from any liable person rather than only a percentage share. The same debt cannot be collected twice. Payment by one debtor releases the others to the extent of that payment.
For example, if a company owes RON 300,000 and ANAF proves that a director disposed of assets in bad faith, causing its inability to pay, a decision may attribute to the director the amount causally linked to that conduct. After the payment deadline, the decision becomes enforceable against personal assets.
Who can be affected?
Article 25 covers several distinct categories. Where a debtor has been declared insolvent for tax collection purposes, these may include persons who acquired assets in bad faith and helped cause the insolvency, persons who concealed or disposed of assets in bad faith, directors who failed to seek insolvency proceedings when legally required, and persons who caused non-declaration or non-payment of tax in bad faith.
Other categories concern improperly obtained repayments or refunds, certain conduct causing accumulation and avoidance of tax liabilities where insolvency proceedings have been sought, garnishees disregarding the freezing of sums, and legal entities in a statutory control relationship with the debtor.
Constitutional Court Decision no. 49 of 18 February 2025 found the legislative arrangements in Article 25(3)(b) and (c) unconstitutional because the criteria concerning significant overlaps in customers, suppliers, employees or service providers were insufficiently clear. The provisions ceased to have effect in the absence of a legislative correction within the constitutional period. The draft’s chapter on entities under common control addresses only Article 25(3)(a), concerning acquisition of assets in the statutory proportion.
A formal link to the debtor is therefore insufficient. ANAF must establish which statutory ground applies to the particular person and prove the relevant facts.
What ANAF must substantiate
The proposed procedure requires individualisation of the conduct, when the person acted or should have acted, the liabilities for that period and the attributable amount. Where bad faith is required, it must be evidenced. Business failure, temporary illiquidity, unpaid tax or a poor management decision does not by itself prove deliberate non-declaration, non-payment or obstruction of recovery.
Potential evidence includes the duration of non-compliance, use of liquidity, asset transfers, donations, fictitious or undervalued sales, transfers to affiliates and concealment or non-recording of assets. These are not conclusive presumptions. They must be examined against actual responsibilities, timing and causation.
The decision must explain how the conduct caused accumulation of liabilities, the debtor’s insolvency or inability to recover the tax. Merely naming a director and listing debts does not establish that connection. Liability must be limited to the relevant principal and ancillary obligations and the amount attributable to the conduct. For the covered entity under common control that acquired assets, the draft limits liability to their value.
The proposed administrative stages
ANAF first collects and assesses information, including tax and accounting records, financial statements, asset movements, bank transactions, e-Factura and SAF-T data, company-register information and information from other authorities. A report opening the procedure must identify the person, facts, legal basis, period, liabilities and supporting documents.
After approval, the person is invited to a hearing. The notice specifies its time and place and the possibility of videoconferencing where registration in the Private Virtual Space and procedural conditions allow. Under the draft, the hearing is scheduled no later than ten working days after notification, subject to justified extension.
The person may examine the file, object, explain and submit documents, with assistance or representation under the Tax Procedure Code. Failure to attend the first hearing leads to a second notice. Failure to attend the second allows the process to continue. Express refusal to attend or sign the record does not prevent a decision.
The person then has five working days to submit a written position and supporting documents. ANAF must actually address the defence. Insufficient evidence, liabilities no longer outstanding or debts outside the relevant period should lead to closure. Otherwise, ANAF prepares a final report and an individual liability decision.
Seven standard forms cover opening and closure reports, the hearing notice, the non-attendance note, the hearing record, the final report and the liability decision.
The hearing is a substantive defence opportunity
Article 26 already requires a hearing before a liability decision and provides for nullity when it is omitted, subject to the exceptions in Article 9. The hearing and access to the file are also addressed in ANAF Order no. 127/2014, the procedure applicable when the original analysis was written. The draft details these stages rather than inventing the right.
A useful defence examines the precise act alleged, timing, amounts, evidence of bad faith and causal reasoning. Depending on the case, accounting records, bank statements, payment priorities, contracts, the commercial rationale for transfers, management responsibilities, shareholder resolutions, recovery efforts and insolvency documents may be relevant. Simply stating that the company had no money is unlikely to answer every issue.
The decision, payment and challenges
A separate decision is issued for each person. It must identify the parties, type and amount of liabilities, relevant period, conduct, legal basis, causation and a reasoned response to the written defence.
The draft reflects payment deadlines of the fifth day of the following month for decisions communicated from the first to fifteenth day, and the twentieth day of the following month for communication from the sixteenth to thirty-first day. After the deadline, the decision becomes an enforcement title.
Asset-securing measures may be taken during the procedure under the statutory conditions where there is a risk of concealment or dissipation obstructing collection. Defence preparation should therefore begin before the final decision.
The administrative challenge must be lodged with the issuing tax authority within 45 days of communication. After determination of that challenge, the decision on the challenge and underlying tax act can be brought before the competent administrative court. Challenging the act does not automatically suspend enforcement. Suspension must be considered separately when personal accounts or assets are at risk.
What changes and what remains essential
The draft aligns the process with the current Tax Procedure Code, details evidentiary checks and standardises documents. It may give taxpayers clearer procedural safeguards while also helping ANAF prepare better substantiated decisions.
Open-ended evidentiary criteria cannot expand the grounds in the statute. An administrative order cannot replace proof of every statutory condition. A summons does not mean liability is already established, but short deadlines make early examination of the complete file and a documented written response important.
The central distinction remains between a company’s unpaid taxes and individually proven personal liability. The first does not automatically establish the second.