ANAF has the right to put on garnishment on credit accounts or credit cards to recover tax liabilities. In this respect, they will garnish the creditor balance, which means that any deposit in the credit account will entail the obligation for the banks to transfer it to ANAF in order to cover the tax claim.
The Code of Civil Procedure states that garnishment can operate on credited values: may “be the object of the prosecution inherently the creditor balance of these accounts as well as the future proceeds […]”.
At the same time, the Code of Fiscal Procedure stipulates that “any traceable amounts of income and cash in RON and foreign currency … held and /or owed to the debtor by third parties or on which they will owe and /or hold in the future on the basis of existing legal relations“.
Banks “have the obligation to pay the frozen amounts to the account indicated by the enforcement officer within 3 days of the escrowed shares” otherwise they can not refuse to pay to ANAF the debtors’ credit accounts, is legally obliged to authorize these payments, with priority over covering their own debts.
In practice, there are situations where some banks refuse to pay the installments after setting up credit card garnishment, claiming that the debt to ANAF is a priority, being enrolled in the Electronic Archive of Secured Guarantees (AEGRM).
At present, banks have a non-unitary practice in the sense that:
- it is proposed to conclude an additional act on behalf of another person to pay the installment instead of the debtor,
- it is accepted to pay the installment at maturity or the day immediately following the maturity,
- the debtor may deposit the amount required to pay the amount after the ANAF has collected the tax debt and has lifted the garnishment
In conclusion, a practical solution to this problem could be the closure of the current bank credit account.
In particular, when credit is requested, banks open a monthly credit account and ANAF establishes garnishment to these credit accounts.
If the debtor requests the closing of the credit account, remaining only with the bank credit, ANAF would not have anymore on which to set up the garnishment, as the bank would cease to be a third party, becoming a mere creditor. Thus, the debtor will pay monthly the installment to the bank in a technical account. This approach has been implemented by a customer in relation to the bank and has been successful.
As for the credit card, the situation is technically similar in the sense that once the ANAF has put on credit card garnishment, the debtor has only to ask the bank to close the card and pay the loan in a technical account, either pay the tax debt and cease the garnishment.
However, in both cases, the credit card and the credit account, the bank can not refuse to close the credit card, the consumer being able to file a complaint with the Consumer Protection Authority.
Alexandra Smahon – Legal Counsel