Le nuove norme in tema di reati tributari ed il loro impatto sulla responsabilità degli enti ex D.Lgs. 231/2001
Abstract
The present work concerns the amendments made by Art. 39, Law Decree
124/2019 (converted by Law 157/2019) to the tax-criminal framework provided by
Legislative Decree 74/2000, with particular attention to the new administrative
illicit established by Art. 25-quinquiesdecies, Legislative Decree 231/2001
("Tax Crimes”).
In particular, the new illicit encompasses, as a relevant predicate offence, only some tax-crimes, i.e. those provided by Art. 2 ("Fraudulent tax revenue by means of false invoices or other documents issued for non-existing operations”), Art. 3 ("Fraudulent tax revenue by means of other artifices”), Art. 8 ("Issuing of invoices or other documents for non-existing operations”), Art. 10 ("Hiding or destroying accounting documents”) and Art. 11 ("Fraudulent subtractions to tax payment”). Hence, after a brief recollection of the mentioned crimes, also joined to the exam of the most frequent cases examined by the jurisprudence, the focus goes on the modifications brought to the sanctions provided by Legislative Decree 74/2000 and Legislative Decree 231/2001.
Among the amendments, particular attention has to be granted to the extension of the so-called "ordinary confiscation” to the Entity which realized – in its own interest or advantage – the tax crime. In such a way the measure hits not only the profit – i.e. the tax savings – which arises directly from the offence, but – through the so called "by-equivalent confiscation” – also the Entity’s property.
Lastly, the impact of the introduction of the new administrative illicit is analyzed with particular attention to the adjournment of the Compliance Models; some suggestion are given with regard to the possible risky areas and to the connected precautionary defenses that have to be put into effect in order to benefit from the exclusion-clause provided by Art. 6, Legislative Decree 231/2001 (ante delictum prevention), or from the reduction of the fine provided by Art. 12, comma 2, lett. b), Legislative Decree 231/2001, and/or from the exclusion of the interdiction according to Art. 17, comma 1, lett. b), Legislative Decree 231/2001 (post delictum prevention).
In particular, the new illicit encompasses, as a relevant predicate offence, only some tax-crimes, i.e. those provided by Art. 2 ("Fraudulent tax revenue by means of false invoices or other documents issued for non-existing operations”), Art. 3 ("Fraudulent tax revenue by means of other artifices”), Art. 8 ("Issuing of invoices or other documents for non-existing operations”), Art. 10 ("Hiding or destroying accounting documents”) and Art. 11 ("Fraudulent subtractions to tax payment”). Hence, after a brief recollection of the mentioned crimes, also joined to the exam of the most frequent cases examined by the jurisprudence, the focus goes on the modifications brought to the sanctions provided by Legislative Decree 74/2000 and Legislative Decree 231/2001.
Among the amendments, particular attention has to be granted to the extension of the so-called "ordinary confiscation” to the Entity which realized – in its own interest or advantage – the tax crime. In such a way the measure hits not only the profit – i.e. the tax savings – which arises directly from the offence, but – through the so called "by-equivalent confiscation” – also the Entity’s property.
Lastly, the impact of the introduction of the new administrative illicit is analyzed with particular attention to the adjournment of the Compliance Models; some suggestion are given with regard to the possible risky areas and to the connected precautionary defenses that have to be put into effect in order to benefit from the exclusion-clause provided by Art. 6, Legislative Decree 231/2001 (ante delictum prevention), or from the reduction of the fine provided by Art. 12, comma 2, lett. b), Legislative Decree 231/2001, and/or from the exclusion of the interdiction according to Art. 17, comma 1, lett. b), Legislative Decree 231/2001 (post delictum prevention).
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