INTRODUCTION
Criminal tax law is the area of criminal law punishing those violations of tax laws deemed of such importance as to require a criminal sanction and not merely an administrative sanction. The main rules concerning tax law are contained in legislative decree no. 74 of 10 March 2000, the subject of periodic innovation which – especially in a period of crisis – induce the legislator to draw up new offences, to exacerbate penalties, or to affect the procedural aspects linked to criminal-tax cases; the most important cases obviously concern the repression of tax evasion. Criminal tax penalties, in addition to those of a custodial type, also have a pecuniary content, since – especially after the recent changes ushered in by LD no.124 of 26 October 2019 – confiscation of the profit deriving from the tax crime committed is also contemplated, including by way of equivalent measures.
The recent reform of 2019 has also raised the penalty threshold of the principal tax offences while decreasing the criminal threshold of the tax evaded or any income tax evasion. Furthermore, the extension of liability for some tax crimes to include companies pursuant to legislative decree 231/2001 is significant: legal persons may therefore be subjected to pecuniary sanctions (or even disqualification from office) following a tax crime committed by senior management per the new art. 25 quinquiesdecies. In 2020 – as part of the fight against financial fraud in the European Union – the so-called PIF Directive (leg. decree no. 75 of 14 July 2020) has been enacted by decree, which has furthered and updated criminal tax law.
TAX CRIMES
The number of tax crimes is composite and varied and punishes all those conducts that, for various reasons and with varying degrees of offence, harm the state interest in its full collection of taxes:
- Cases of false statements through the use of invoices or other documents relating to non-existent operations (Art. 2) and of false statements through other fraudulent means (Art. 3) are of primary importance: the definitions provided for by the regulations are often imprecise and sometimes make it difficult to understand when a certain conduct is actually subject to criminal sanctioning or when, on the other hand, it is a lawful conduct.
- There are also conducts that, though not fraudulent, still enable tax evasion. These are instances of inaccurate tax return (art. 4) and failure to file tax return (art. 5). In this case, too, corporate scenarios are very complex, and corporations are often hastily accused of acting unlawfully. Such examples include cases of transfer pricing, offshoring, correct treatment of royalties and identifying exactly the concept of fictitious expenses.
- Other cases aim at sanctioning conducts leading to tax evasion, such as issuing invoices for non-existent transactions (Article 8), and the concealment or destruction of accounting documents (Article 10).
- Other cases punish failure to pay taxes, including failure to pay certified withholdings (Article 10 bis), failure to pay taxes (Article 10 ter) and undue tax offsetting (Article 10 quater).
- Two distinct cases of tax evasion (Article 11) incriminate, broadly speaking, the execution of fraudulent acts by defaulting taxpayers.
In all these cases, a careful examination of the charges pressed by the tax administration is essential, since criminal tax law is highly selective and aims to punish only few offences amidst the multitude of irregularities that are instead being targeted as administrative sanctions. That is why highly qualified assistance is required.
LEGAL COUNSEL
Baccaredda Boy Law Firm has provided legal assistance in numerous proceedings relating to tax crimes, while also relying on the collaboration of some of the most accredited professionals in tax and fiscal matters in order to ensure an in-depth analysis of the underlying issues, which are complex and constantly evolving.
Baccaredda Boy Law Firm offers an in-depth analysis of tax offences through conferences, study groups and publications. In this regard, please refer to the relevant section.