Studio Legale Petrali · Guide
Tax offences under d.lgs. 74/2000: punishability thresholds, relations with tax proceedings and non-punishability upon full payment of the debt.
D.lgs. 74/2000 distinguishes offences concerning tax returns from collection and documentary offences. Fraudulent returns using invoices for non-existent transactions carry no threshold; unfaithful returns, failure to file and failures to pay are instead punishable only above specified thresholds of evaded tax, set separately for each individual offence.
Legislative decree 10 March 2000, no. 74 provides in article 2 for the fraudulent tax return using invoices or other documents for non-existent transactions, with no punishability threshold; in article 3 for the fraudulent return by other artifices, with a threshold of evaded tax exceeding thirty thousand euros and a further threshold relating to the active items concealed; in article 4 for the unfaithful return, with evaded tax exceeding one hundred thousand euros and active items concealed exceeding ten per cent of the total or in any event two million euros; in article 5 for failure to file, with evaded tax exceeding fifty thousand euros; in article 8 for the issue of invoices for non-existent transactions; in article 10 for the concealment or destruction of accounting records; in article 10-bis for failure to pay over withholding taxes and in article 10-ter for failure to pay value added tax, with thresholds of one hundred and fifty thousand and two hundred and fifty thousand euros respectively for each tax period; in article 10-quater for undue offsetting, differentiated according to whether the credit is non-due or non-existent; in article 11 for the fraudulent evasion of tax payment.
Legislative decree 14 June 2024, no. 87 reworded articles 10-bis and 10-ter, deferring the relevant payment deadline and excluding the offence where the tax debt is in the course of being extinguished through an instalment plan regularly in place; where the benefit of the instalment plan is forfeited, punishability is confined to cases in which the residual debt exceeds fifty thousand euros for failure to pay over withholding taxes and seventy-five thousand euros for failure to pay value added tax.
Legal references: artt. 2, 3, 4, 5, 8, 10, 10-bis, 10-ter, 10-quater, 11 d.lgs. 10 marzo 2000, n. 74; d.lgs. 14 giugno 2024, n. 87.
Yes, within the limits of article 13 of d.lgs. 74/2000. For failures to pay and for undue offsetting of non-due credits, full payment before the opening of the trial excludes punishability. For the return-related offences, the payment must in addition precede formal knowledge of any access, inspection or audit by the authorities.
Article 13, paragraph 1, of legislative decree 74/2000 provides that the offences under articles 10-bis, 10-ter and 10-quater, paragraph 1, are not punishable if, before the opening of the first-instance trial is declared, the tax debts, including administrative penalties and interest, have been extinguished by full payment, including following the special conciliation and assessment-settlement procedures or ravvedimento operoso (voluntary correction). Paragraph 2 extends non-punishability to the offences under articles 2, 3, 4 and 5, on condition that the voluntary correction or the filing of the omitted return occurs before the perpetrator has had formal knowledge of accesses, inspections, audits or the commencement of any administrative assessment activity or criminal proceedings. Paragraph 3 governs the extension of time for instalment payments in progress, with a three-month period extendable once only by the court and suspension of the limitation period.
Legislative decree 14 June 2024, no. 87 inserted paragraph 3-bis, which excludes punishability of the offences under articles 10-bis and 10-ter where the failure is due to causes not attributable to the perpetrator arising after the withholding taxes were applied or the value added tax was collected, and paragraph 3-ter, which identifies the factors the court weighs predominantly when assessing the particular slightness of the fact: the extent of the deviation from the punishability thresholds, compliance with payment obligations under the instalment plan, the size of the residual debt and the state of crisis of the business. Article 13-bis provides, outside the cases of non-punishability, for a reduction of up to one half of the penalties and the non-application of ancillary penalties where full payment is made before the opening of the trial, and makes access to patteggiamento (negotiated sentence, art. 444 c.p.p.) conditional on payment of the debt.
Legal references: artt. 13, 13-bis d.lgs. 74/2000; d.lgs. 14 giugno 2024, n. 87; art. 444 c.p.p.
Yes: the dual-track principle laid down by article 20 of d.lgs. 74/2000 applies, so the criminal proceedings and the tax proceedings do not suspend one another. The 2024 reform, however, introduced coordination mechanisms on the effect of a criminal acquittal and on the proportionality of the combined sanctions.
Article 20 of legislative decree 74/2000 establishes that the administrative assessment procedure and the tax trial cannot be suspended on account of the pendency of criminal proceedings concerning the same facts. Article 21 governs the administrative penalties for violations considered criminally relevant, whose enforcement remains suspended until the criminal proceedings are concluded. Legislative decree 14 June 2024, no. 87 introduced article 21-bis, which gives binding effect in the tax trial to an irrevocable criminal judgment of acquittal on the ground that the fact does not exist or that the accused did not commit it, delivered after a full trial, as regards the material facts established; and article 21-ter, which requires that account be taken, at the stage of imposition and collection, of the sanctions already imposed in each of the two systems, in implementation of the principle of proportionality.
At supranational level the matter is governed by the prohibition of bis in idem under article 4 of Protocol no. 7 to the European Convention on Human Rights and article 50 of the Charter of Fundamental Rights of the European Union, according to the criteria of the 2016 judgment in A and B v. Norway on the sufficiently close connection in substance and time, and of the 2019 judgment in Nodet v. France. The Constitutional Court has intervened with judgments no. 43 of 2018 and no. 149 of 2022.
Legal references: artt. 20, 21, 21-bis, 21-ter d.lgs. 74/2000; art. 649 c.p.p.; art. 4 Prot. n. 7 CEDU; art. 50 CDFUE; Corte cost. n. 43/2018 e n. 149/2022.
Confiscation of the price or profit of the offence is mandatory and, where direct confiscation is not possible, value-based confiscation of assets of corresponding worth applies. Preventive seizure in view of confiscation is governed by article 321, paragraph 2, of the code of criminal procedure and by article 322-ter of the criminal code.
Article 12-bis of legislative decree 74/2000 provides that, in the event of conviction or application of sentence on request of the parties for one of the offences under the decree, confiscation of the assets constituting its profit or price must always be ordered, unless they belong to a person unconnected with the offence, or, where this is not possible, confiscation of assets at the offender’s disposal of corresponding value. Paragraph 2, in the wording resulting from legislative decree 14 June 2024, no. 87, provides that seizure of assets in view of confiscation is not to be ordered where the tax debt is in the course of being extinguished through an instalment plan and the taxpayer is up to date with the related payments, unless there is a concrete danger of dissipation of the asset guarantee, inferred from the offender’s income, asset or financial position and from the seriousness of the offence.
Article 12-ter governs the special cases of confiscation, by reference to article 240-bis of the criminal code, for the most serious cases identified by offence and by thresholds of evaded tax. Preventive seizure in view of confiscation is ordered under article 321, paragraph 2, of the code of criminal procedure and may be challenged by an application for riesame (interlocutory re-examination) under article 324. As against the company, direct seizure of the profit is permitted against the assets of the entity which benefited from the offence committed by its director; value-based seizure of the entity’s assets presupposes, by contrast, that the entity has been charged with the offence under article 25-quinquiesdecies of legislative decree 231/2001.
Legal references: artt. 12-bis, 12-ter d.lgs. 74/2000; d.lgs. 14 giugno 2024, n. 87; art. 240-bis c.p.; artt. 321, comma 2, 322-ter, 324 c.p.p.; art. 25-quinquiesdecies d.lgs. 231/2001.
Yes, within the limits of article 25-quinquiesdecies of d.lgs. 231/2001, which includes a closed list of tax offences among the predicate offences. The entity’s liability still requires the interest or advantage of the entity and organisational fault, and it is additional to the liability of the natural person.
Article 25-quinquiesdecies of legislative decree 8 June 2001, no. 231 was introduced by decree law 26 October 2019, no. 124, converted with amendments by law 19 December 2019, no. 157, and subsequently extended by legislative decree 14 July 2020, no. 75 implementing directive (EU) 2017/1371. The predicate offences are the fraudulent tax return using invoices for non-existent transactions, the fraudulent return by other artifices, the issue of invoices for non-existent transactions, the concealment or destruction of accounting records and the fraudulent evasion of tax payment; for the unfaithful return, failure to file and undue offsetting, the entity’s liability is limited to acts committed within cross-border fraudulent schemes and for the purpose of evading value added tax in a total amount of not less than ten million euros.
Financial penalties are provided for, increased by one third where the entity obtained a profit of significant size, together with the disqualification sanctions under article 9, paragraph 2, letters c), d) and e). The tax section of the organisational model takes on concrete defensive significance: mapping of active and passive invoicing processes, controls verifying the genuine operations of counterparties, procedures for managing offsetting and information flows to the supervisory body.
Legal references: art. 25-quinquiesdecies d.lgs. 231/2001; d.l. 124/2019 conv. l. 157/2019; d.lgs. 14 luglio 2020, n. 75; direttiva (UE) 2017/1371.
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