Fraudulent tax avoidance: new ruling of the Court of Cassation

The Court of Cassation, by judgment n. 10763 of 19 March 2021, has returned to rule on the scope of the crime for fraudulent theft from the payment of taxes, clarifying what are the necessary and sufficient conditions for the integration of the case

As you know, art. 11 of Legislative Decree no. 74/2000 provides that: “commits the crime of fraudulent subtraction to the payment of taxes anyone, in order to avoid the payment of taxes on income or value added or interest or administrative penalties in respect of such taxes of a total amount exceeding EUR 50000, sell or otherwise fraudulently on its own or on another person’s property which is liable to render the compulsory collection procedure wholly or partially ineffective”.

In the present case, a person previously convicted by the Court of Appeal of Trieste, against whose sentence he appealed in the Supreme Court, was found guilty by the latter for having falsely or fraudulently alienated a property owned by him for a considerably lower price than that paid for the purchase, and that of subsequent resale, in order to avoid the payment of a debt to the tax authorities for an amount exceeding 50,000 euros.

The Court of Cassation, in deciding the dispute, states that: “the existence, at the time of the unlawful conduct, of a debt to the Financial Administration, although not yet precisely determined, and possibly not subject to any investigation procedure, must be considered sufficient as a precondition for the offence, provided that a total amount of more than EUR 50000 can be estimated”.

It then goes on to point out that: “the staff member must be[1] aware of his debt to the Exchequer at the time of conduct, even though this situation is not yet the subject of an investigation by the Financial Administration, for a sum of more than fifty thousand euros, or at least must fully accept the risk of such eventuality, that is to say, according to the paradigm indicated by the United Sections, the significant possibility of verifying the actual event must be clearly represented and, nevertheless, after considering the intended purpose and the possible price to be paid, it must be determined to act in any case, even at the cost of causing the harmful event, by adhering to it, if it occurs”.

It is clear that the intention of the judges is to stress that, for the purposes of the integration of the crime, even before the investigation by the tax authorities, it is sufficient that the conduct of the person is such as to prevent the useful experiment of a recovery procedure due to the sale of the goods with fraudulent intent.

[1] Sec. U., No. 38343 of 24/04/2014, Espenhahn, Rv. 261104-01