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Tax fraud and corporate liability

corporate administrative liability: The Supreme Court recognized for the first time the definition of corporate administrative liability derived from tax fraud crime #frodefiscal ex art. 2 Legislative Decree no. 74/2000.

Attorney Luigi Tassinari reports on judgment no. 16302 of 2022 (filed on 28 April 2022), whereby the third division of the Supreme Court – following the introduction of certain tax crimes in the category of predicate offences of corporate administrative liability per legislative decree no. 231/2001 – established, for the first time, the administrative offence after committing the crime of fraudulent statements through the use of invoices or other documents for non-existent transactions as a classifiable corporate offence.

The Court rejected the appeal filed by the company against the order whereby the Milan Judicial Review Court had confirmed the preventive seizure decree issued by the preliminary investigations magistrate against the company, accused of the criminal offence referred to in art. 25-quinquiesdecies of legislative decree no. 231/2001, for obtaining a financial advantage after committing the criminal offence provided for by art. 2 legislative decree no. 74/2000, for its own gain and at the hands of individuals in senior management positions.

Indeed, the defendants, in order to evade VAT, simulated procurement contracts instead of contracts for the illegal staff leasing, indicated fictitious liabilities (deductible VAT) for an amount exceeding 20 million euros, using invoices for transactions that were legally non-existent.

More specifically, an unlawful scheme would have been created according to which the contractor, through a fictitious contract, applied for the right to deduct the VAT after putting in place a mechanism whereby, through the payment of invoices for “fictitious” work and services, reclaimed the VAT from a consortium which, in turn, had reclaimed the tax from the cooperatives, which should have paid it to the state but which, shortly afterwards, had ceased operations, having an outstanding debt to the tax authorities who were prevented from collecting the tax, resulting in taxpayers being saddled with the company’s liability of debts.