#accountants’ accessorial liability in tax offences involving #fraudulent statements through the use of invoices or other documents for non-existent transactions: conspiracy and subjective element.
Attorney Luigi Tassinari reports on the recent judgment no. 156 of 2022, with which the 3rd Division of the Supreme Court confirmed the conviction of an accountant of two companies for aiding and abetting their managing directors in issuing false statements through the use of invoices or other documents for non-existent transactions, as provided for by art. 2 of legislative decree no. 74/2000.
In justifying their decision, the judges focused their attention on two elements in particular: conspiracy and #subjective element necessary for establishing the professional’s indirect support in the crime.
In terms of causal link between the professional’s conduct and the criminal event, reference has been made to the jurisprudential view according to which the accessory’s indirect support can manifest itself through differentiated and atypical forms of criminal conduct not only in the case of psychological assistance, but also in the case of physical assistance. It also bears repeating that conspiracy becomes more relevant not only when it entails a causal link – therefore placing itself as a condition for the damaging event – but also when it acts as a facilitating agent, i.e., when, without aiding and abetting, the offence would have been committed in any case, though with a greater degree of uncertainty of success or difficulty.
On the other hand, as regards the subjective element, the judges reiterated that the specific intent crime required to establish the crime provided for by art. 2 of legislative decree no. 74/2000 (“in order to evade income or value added taxes”), is compatible with dolus eventualis involving the professional, which can be demonstrated in the acceptance of the risk that the filing of the tax return, including invoices or other documents for non-existent transactions, may lead to the evasion of direct taxes or VAT.