Peligrad Law successfully represented Heineken in a tax litigation securing the annulment of tax liabilities exceeding EUR 7million

Peligrad Law successfully represented Heineken Romania SA before the High Court of Cassation and Justice, securing the confirmation of the annulment of tax liabilities exceeding EUR 7million — a landmark decision for Romanian tax practice.

PeligradLaw team obtained a final ruling from the High Court of Cassation and Justice(ÎCCJ) annulling tax obligations of nearly EUR 7.2 million, representing VATadditionally imposed by ANAF in connection with the commercial discountsgranted by Heineken Romania SA to its distributors.

This high impact case sets an important precedent in Romanian case law and offers significant guidance on VAT treatment and the fiscal qualification of commercial discounts.

Peligrad Law team — Vlad Peligrad (Founding Partner) and Călin Dragoman (Partner, Head of Litigation) — successfully assisted and represented Heineken Romania SA before the High Court, securing the dismissal of ANAF’s appeal against the Bucharest Court of Appeal decision which had annulled the tax assessment acts imposing approximately EUR 7.2 million. These amounts arose from ANAF’s attempt to reclassify the commercial discounts granted by Heineken Romania SA as remuneration for services allegedly provided by distributors.

At the core of the case was ANAF’s erroneous interpretation that the discounts granted to distributors constituted payment for services rendered to the taxpayer. To justify additional VAT, the tax inspectors treated these discounts as service fees, although the alleged remuneration was disproportionate to the supposed services and the taxpayer retained the unilateral right to establish and modify the discounts — a mechanism incompatible with a genuine service arrangement.

Moreover, ANAF applied a non uniform approach to identical transactions: while one team reclassified the discounts as taxable services for Heineken Romania SA, another control team accepted the same discounts at the level of the distributors without reclassification.

By rejecting ANAF’s appeal, the High Court endorsed the arguments of the Peligrad Law team and confirmed the Bucharest Court of Appeal’s reasoning, including that:

 ·       fiscal and legal qualification of the same transaction must be uniform for all parties involved;

·       discounts unilaterally set and adjusted by the taxpayer cannot constitute remuneration for services, as the beneficiary of a service cannot unilaterally set its price;

·       the alleged “remuneration” could not represent a real and serious price, given the clear disproportionality between the discounts and the supposed services.

Consequently, the Supreme Court upheld the original judicial solution, confirming the proper legal and fiscal treatment of the commercial discounts granted by Heineken Romania SA.

We are grateful for the support of Heineken Romania SA’s internal legal and finance teams, in particular Mr. Sorin Vălean (Senior Legal Adviser) and Mr. Flavius Năstăsie (Tax Manager), whose contributions were essential throughout the proceedings.