Tax offences ex D.Lgs. n.231/2001: responsibility of the legal representative and the company
Responsibility of a company without organizational models whose legal representative is reported for an illegal assumption: the judicial police that is investigating is required to report to the Public Prosecutor also the concomitant organizational events of the entity.
On the occasion of the recent meeting of Telefisco 2021, the Finance Police expressed its opinion on the question of the assessment of liability ex D.Lgs. June 8, 2001, n. 231, in the presence of a tax predicate crime.
The question, given the current inclusion of tax crimes in the catalogue of “predicate crimes”, is clearly very topical.
It was therefore asked, whether, in the event that the legal representative is reported for one of the tax predicate crimes (this refers to a fraudulent declaration by using false invoices for amounts exceeding 100,000 euros pursuant to art. 2 D.Lgs.74/2000 and art. 25-quiquiesdecies D.Lgs.231/2001) and the capital company has not adopted the safeguards provided for by the aforementioned Legislative Decree 231/2001, the administrative responsibility of the latter can be automatically reported to the Public Prosecutor, given the benefit resulting from the payment of lower taxes (VAT and direct taxes).
It is considered that the answer must be positive: the complaint of the legal representative for the tax offence committed is connected with the report to the Public Prosecutor’s Office of the position of the company with an explanation of the circumstances useful to frame the possible liability of the entity, including failure to adopt the organizational model. It should also be noted that all evidence acquired during criminal proceedings is to be acquired simultaneously with the administrative proceedings instituted against the company.
However, it must be stressed that the company’s complaint does not correspond to its automatic sanction.
The Finance Police must ascertain, since the identification of the first indications of responsibility in the hands of the company, the existence of the objective and subjective conditions provided for by Decree 231. The judicial police must therefore develop specific in-depth studies aimed at:
- Verify the existence of a concrete advantage or interest for the institution, normally present in tax crimes, which, generally, produces an economic benefit corresponding to an undue tax savings for the same institution-taxpayer.
- To obtain every useful piece of evidence with reference to the psychological attitude that characterized the conduct of the agent, through the examination of the accounting and extra-accounting documentation acquired during the investigations. This in order to ascertain possible phenomena of “dissociation” between the will of the natural person author of the crime and that of the agency, with consequent exemption of the responsibility of the latter.
- Finally, check the suitability of any organizational models adopted with the aim of preventing the commission of crimes of the kind of that condition.
In this regard, an appropriate organizational model, for example, to prevent the crime of fraudulent declaration pursuant to art. 2 D.Lgs.74/2000, should provide for specific measures to control the passive cycle of supplies. The organizational models must include safeguards of fiscal risk and it will be necessary to start from a risk assessment that covers the tax crimes covered by the c.d. “catalog 231”, so that internal processes and procedures can be properly implemented, including in tax matters.