The Crime of Omitted Tax Return

1. Introduction

1. Introduction

The omitted declaration of income is one of those crimes where a punishability threshold is provided, that is, it follows the rationale to pursue behavior characterized by effective and significant offensiveness for the interests of the Treasury. The quantification of the tax evaded therefore assumes a decisive role in the context of the crime.

2. The standard

2. The standard

Art. 5 Omitted declaration D.lgs. 74/2000

« 1. Anyone who, in order to evade taxes on income or value added, is not punished with imprisonment from one to three years, does not have, having been obliged to do so, one of the annual declarations relating to such taxes, when the tax evaded [ 1] is higher, with reference to some of the individual taxes, at thirty thousand euros.

2. For the purposes of the provision pursuant to paragraph 1, the declaration presented within ninety days of the expiry of the deadline or not signed or drawn up on a printed form conforming to the prescribed model shall not be considered as omitted .

3. Protected legal asset

3. Protected legal asset

Basically there are two protected legal assets:

to. Tax transparency;

b. The patrimonial interest of the Treasury to the correct perception of the tax.

It should be pointed out that the offense to fiscal transparency alone, which is already carried out with the omitted declaration, does not in itself integrate the crime, since the tax effectively evaded must exceed EUR 30,000. And it is precisely the overcoming of this threshold that creates the offense for the Treasury, so much to conclude that it is a crime of damage.

4. Active subject

4. Active subject

It is a “proper” crime and therefore only those who are tax payers can implement it. The rule refers to “anyone” is obliged to submit one of the annual declarations, so it can be said that it is a very broad subjectivity (it can be done by any taxpayer even if not subject to VAT).

5. Subjective element

5. Subjective element

Specific fraud, consisting in the purpose of evading taxes [2], which in the specific case are exclusively taxes on income (personal income tax and IRES) and on value added. Therefore, those conducts whose purpose is not to evade or evade taxes such as IRAP and other indirect taxes are not considered criminal. If the conduct is aimed at other purposes, while endangering the protected asset, it becomes irrelevant for the penal-tax system. We recall the non-existence of a specific definition, by the legal system, of tax evasion.

6. Objective element

6. Objective element

The conduct consists in omitting the presentation of the tax return or the added value. The declaration is not considered omitted:

to. If submitted within 90 days from the deadline;

b. If not signed;

c. S e not written on a printout conforming to the prescribed model.

This last provision (Article 5 paragraph 2) is in line with the principle of offensiveness of Italian criminal law, which states that there can be no crime without an offense (injury or endangerment) to a legal asset.

7. Consumption

7. Consumption

It is an offense against instant consumption: it is necessary and sufficient that the ninety days (period of repentance) start from the final date of presentation of the tax return or on the added value provided by the tax law [3] .

8. Prescription

The Legislative Decree n. 74 of 2000 does not provide for specific statute of limitations on crimes relating to income and value added taxes; the relative regulation, therefore, is derived from the general principles set out in articles 157 and following of the penal code.

The new regulation (modified by article 6 of law 251/2005) establishes that the prescription occurs, for all types of crimes, ” once the time corresponding to the maximum of the legal penalty established by the law and in any case not less than six years if it is a crime … “, as in the case of all the crimes provided for by Legislative Decree 74/2000.

The law of 14 September 2011, n. 148, has inserted with the art. 2, paragraph 36-vicies bis, paragraph 1-bis of the art. 17 of Legislative Decree 74/2000: ” The statute of limitations for the crimes provided for in articles 2 to 10 of this decree are high by one third”. This ultimately means that the crimes in question are prescribed in 8 years.

Furthermore, it is added that for the determination of the time required for the prescription, any reductions or increases in punishment resulting from the application, in the specific case, of extenuating and aggravating circumstances will not be taken into account. The limitation period for the offense in question begins on the day the declaration is presented – when the crime was committed – according to the general rule of art. 158 cp [4]

Given the primary interest of the State in the perception of taxes, the legislator has provided [5], the interruption of the prescription in three cases:

– The various cases provided for by Article 160 of the Criminal Code (sentence, personal precautionary measures, the questioning made before the public prosecutor or the judge, etc.);

– Verification report;

– Act of ascertainment of the relative violations.

9. Attempt

9. Attempt

Although not explicitly excluded by the art. 6 of Legislative Decree 74/2000, the attempt is not possible as its own omissive offense.

10. Procedure

10. Procedure

On the office.

11. Competence

11. Competence

The judge of the taxpayer’s place of tax domicile is competent (art. 18, paragraph 2). Article. 18 of Legislative Decree 74/2000, regulates the jurisdiction of the Judicial Authority for crimes relating to taxes on income and VAT on the basis of composite parameters, diversified according to the concrete circumstances, only partially adhering to the general provisions of the code penalty, according to the following table:

1) General criterion

Place where the crime was
consumed, pursuant to art. 8 cpp

2) Criterion to be used when it is not possible to determine the place of consummation of the crime

Place where the crime was
ascertained

3) Special criterion for crimes related to the declaration (articles 2, 3, 4 and 5 of Legislative Decree 74/2000)

Place of residence for tax purposes
taxpayer

4) Special criterion for crimes related to the declaration, when the tax payer’s domicile is abroad

Place of investigation of the crime

5) Special criterion for the case of issue of invoices or documents for non-existent operations by the same subject in the same tax period, in places falling within different judicial districts

Place where the Public Prosecutor’s Office is located, which first entered the news of the crime in the register referred to in art. 335 cpp

 

The Court of Cassation (sent. 20504/2014) stated that, for the purpose of identifying the tax domicile pursuant to Article 18 of the Legislative Decree 74/2000, it is necessary to have regard, in the case in which a fictitious registered office has been established, to the actual seat of the company, identifying in it the fiscal domicile and, therefore, the place of consummation of tax crimes in matters of declaration.

12. Jurisprudence

12. Jurisprudence

Determination of tax evaded

For the purposes of configurability of the offense of the contested sentence which had assumed as the basis for calculating the tax, only the selling price of the goods was evaded and not the negative elements of Sentence n. 38684 of 06/04/2014)

90 days deadline

The dilatory term of ninety days, granted to the tax payer to present the Judgment n. 43695 of 10/11/2011)

Revenue documentation and not costs

The crime was carried out on the basis of presumptive indexes of an abstract type and automatic and without any reference to specific concrete data from which it could be deduced the material fact of the tax evaded, and added that only the revenues had been taken into consideration because only of they had documentation or said otherwise, there was the absence of elements that legitimately meant the existence of costs incurred by the company.

(Section 3 , Sentence n. 35858 of 07/06/2011)

Consumable moment – Individuation

The term of ninety days from the deadline for the presentation of the identified status in that of the presentation by electronic means, whose deadline was later than that of the traditional presentation at post offices or banks).

(Section 3 , Sentence No. 22045 of 04/21/2010)

Assignment to the assignment professional to prepare and present the declaration

The assignment to a professional of the assignment to prepare and present the Sentence n. 9163 of 10/29/2009)

De facto administrator and administrator of law

The crime of Sentence n. 23425 of 04/28/2011)

Nature of the punishment thresholds

The thresholds for punishment provided for tax crimes have the nature of elements constituting the crime, with the consequence that these thresholds must be “invested” by the fraud, so that if the accused is not aware of having passed them, he cannot be condemned.

(Section 3, Sent. 42868/2013)

13. Insights

13. Insights

Inductive assessment and burden of proof

According to the jurisprudence in criminal proceedings the inductive assessment made by the financial offices can represent a valid element of investigation to establish whether there has been evasion and whether it has reached the threshold of punishment provided for by the law, on condition that the Judge does not limit himself to ascertain their existence and not merely refer to the elements highlighted by the inductive assessment itself, but proceed with a specific independent evaluation of the elements described comparing them with those eventually acquired during the procedure.

In criminal proceedings, legal presumptions or criteria valid at the tax office cannot be applied, as it is the responsibility of the public prosecution to provide proof of the existence of all the elements constituting the crime. It is therefore unquestionable that for the purpose of exceeding the threshold of punishment pursuant to Legislative Decree no. 74 of 2000, art. 5, it is exclusively up to the criminal judge to carry out the assessment and determination of the amount of the tax evaded , through a check that can overlap and even contradict that possibly made before the tax judge ( Sent. 37335 of the current account are considered revenues of the company (art. 32, first paragraph n. 2, DPR September 29th 1973, n. 600), as it is up to the criminal judge to determine the amount of the tax evaded proceeding automatically to the necessary checks, possibly through recourse to factual presumptions ( Sent. 5490 of 2008 ).

Tax evaded and tax due – from the tax to the penalty

To explain the concept of tax evasion, one could start from the definition given by Legislative Decree 74/2000 to the art. 1, paragraph 1, letter f): « for“ evaded tax “means the difference between the tax actually due and that indicated in the declaration, or the entire tax due in the case of omitted declaration, net of the sums paid by the tax payer or by third parties as a down payment, withholding or otherwise in payment of said tax prior to the presentation of the declaration or the expiry of the relevant term “. In essence, the tax due must be determined. Briefly, the tax amount due for the offense in question (personal income tax [6], IRES [7], Taxes [8]) can be made by the Financial Police and the Revenue, the tax court and the judge criminal.

In the field of tax law, the financial administration’s ascertainment power is often based on the presumptive instrument: it can determine the tax base, and consequently the greater tax evaded, or by virtue of relative presumptions, thus giving rise to that mechanism that generates the reversal of the burden of proof on the taxpayer, or even on the basis of simple presumptions that as such find their sphere of operation in the event of serious, precise and concordant circumstances.

In the criminal field, the judge is exclusively responsible for ascertaining and determining the amount of the tax evaded , through a check that can overlap or even contradict that possibly made in the tax area. The Court of Cassation with sentence n. 5490 dated 6 February 2009, returning to this point, established that the legal tax presumptions cannot be applied in criminal proceedings with the consequence that they cannot be used by the judge as the only system aimed at evaluating a possible conviction.

With regard to the possible configuration of the crime of failure to report to the judicial authority (comb. Provision of articles 361 and 362 of the Criminal Code and 331 and 347 of the Code of Criminal Procedure), it is specified that the obligation to report the facts detected in the exercise of their functions for the public official, for the person in charge of public service or the officer or agent of PG is triggered by the mere fact that there is a likely design, a fumus, about the configurability of a crime and this for the obvious reason that such subjects are not competent to judge whether the fact is punishable in practice, because this requires investigations and assessments that are reserved to the judicial organs. If the hypothesis of crime emerges during the verification, the obligation to transmit the news of crime arises in the moment of the finding of the fact constituting the crime. In this regard the following sentence is cited:

It does not integrate the status noted in the doctrine that with the repeal of ILOR pursuant to Legislative Decree 446/1997 partnerships, from a substantive point of view, are not currently taxable subjects of any income tax and that no a tax of this nature is due by them, although they still maintain accounting and declarative obligations for the sector of direct taxes.

As is known, for these subjects the principle of imputation for transparency of income, considered ex lege business income (art. 6, 3rd paragraph of the TUIR), is in force, since the same is attributed to each shareholder in proportion to the share of profit participation , regardless of perception (art. 5, 1st paragraph TUIR). On the basis of the company’s declaration, the shareholders must disclose in their declaration form the portion of the corporate income referable to them. The ascertainment of a greater business income towards the company generates an automatic verification against the members. The position of these companies, however, remains unchanged as regards the formal and substantial obligations for VAT purposes.

If indefectible presupposition for the existence of the crimes of which in the artt. 2, 3, 4 and 5 of Legislative Decree 74/2000 (with reference to the direct taxation sector) it is the “presented or failed to present” a tax return which is used to process a tax (own or of the subject represented), that minimum of criminality never occurs against the administrators of partnerships already under the profile element of the offense material.

Even from a subjective point of view the evasion of evasion would not exist, since in the installation of the incriminating rule it must be referred primarily to the tax payable by the tax payer or by the company for which the administrator acts (art. 1, lett. c of Legislative Decree 74) and not to the tax that third parties such as shareholders must pay to the Treasury, albeit on the basis of the statements made by the company itself.

According to this orientation, therefore, only a criminal offense with regard to VAT and, as a competition pursuant to art. 110 of the CP in the crime of unfaithful declaration consumable by the shareholders .

Given the above, in the presence of business income not declared by partnerships, it is necessary for the verifiers to report in any case the facts that can be considered criminally relevant. For this purpose the quantification of the tax threshold evaded must refer to the sum of the taxes evaded by the single members and determined on the basis of the share of income from each not declared in violation of the art. 5 of the TUIR [9].

Preventive seizure aimed at confiscation by equivalent

The determination of the tax evaded acquires particular importance also for the determination of the amount to be subjected to preventive seizure.

The preventive seizure, functional to the confiscation for equivalent, ordered for the crime of omitted declaration, must refer to the amount of the evaded tax, since it constitutes an undoubted patrimonial advantage directly deriving from the illegal conduct and, as such, attributable to the notion of “profit” of the crime in question.

( Section 3, Sentence n. 1199/2011)

The confiscable profit, even in the form of an equivalent, is constituted by any patrimonial advantage directly obtained by the consummation of the crime and can therefore also consist in a saving of costs, such as that deriving from the non-payment of the tax.

(Section 3, Sentence n. 5759/2014)

Final considerations

The determination of the tax evaded, for criminal purposes, is ultimately up to the judge and could not be otherwise. It is obvious that the judge will start from what has been ascertained or ascertained substantially by the Guardia di Finanza and by the Revenue Agency: the more accurate the quantification of the tax evaded in the tax office, the more it will simplify the task of the judge in criminal proceedings. The threshold (30,000 Eur) established by the legislator to guarantee that principle of necessary offensiveness of criminal law, is a constitutive element of the crime and therefore must be invested by the fraud for the offense to be realized. The omitted submission of the tax return or VAT legitimizes the Financial Administration to use “pure inductive” methods of fiscal control that completely disregard the records, the budget, the declaration of the tax payer himself. As recognized by the jurisprudence, the existence of the presuppositions the adoption of the “pure inductive” method for the purpose of determining the taxable income, does not oblige necessarily to resort to the latter, well being able to proceed with the analytical method. If it is part of the premise that, in criminal proceedings, it is up to the prosecution to try to exceed the threshold of EUR 30,000, we understand how it is preferable for the verifiers to use analytical methods. In any case, with regard to income taxes, the inductive assessment aims to reconstruct the business income or deriving from the exercise of arts and professions, as a whole, understood as the algebraic sum of positive and negative elements.

Despite the absence of direct and immediate conditioning of the criminal judgment with respect to the decisions of the tax judge and vice versa (Article 20 of Legislative Decree 74/2000 and 3 and 479 Code of Criminal Procedure), there seems to be a “power-duty” on these two judging bodies, however, to take into consideration, in absolute autonomy and in compliance with their own procedural rules, the results and conclusions of the respective proceedings.

To Martina

[1] Legislative Decree 74/2000 – Art. 1, letter f), “tax evaded” means the difference between the tax actually due and the tax indicated in the declaration, or the entire tax due in the case of omitted declaration, net of the sums paid by the tax payer or by a third party as a down payment, withholding tax or in any case in payment of said tax before submitting the declaration or the expiry of the relevant term;

[2] Legislative Decree 74/2000 – Art. 1, letter d , ” the purpose of evading taxes and the purpose of allowing third parties evasion are understood to include, respectively, the purpose of allowing an undue reimbursement or recognition of a non-existent credit d ‘tax and the purpose of allowing them to third parties “.

[3] Presidential Decree of 22 July 1998, n. 322 – Art. 2 Deadline for the presentation of the declaration regarding income taxes and IRAP

1. Physical persons and companies or associations referred to in Article 6 of the Presidential Decree of 29 September 1973, n. 600, submit the declaration in accordance with the provisions of article 3, through a bank or an office of the Italian Post Office between May 1st and June 30th or electronically by September 30th of the following year to that of closing the tax period.

2. The subjects to the income tax of legal persons, submit the declaration according to the provisions of article 3 electronically, by the last day of the ninth month following the closing of the tax period.

[4] Art. 158. CP – Effective limitation period

1. The term of the limitation period starts, for the offense consumed, from the day of the consummation; for the attempted crime, from the day on which the offender’s activity ceased; for the permanent crime, from the day the stay ended.

[5] Legislative Decree 74/2000 – Art. 17 Interruption of the prescription

1. The course of the prescription for the crimes provided for by this decree is interrupted, in addition to the deeds indicated in article 160 of the penal code, by the report of ascertainment or by the deed of verification of the relative violations.

[6] According to the instructions of the unique pattern PF 2015 are obliged to submit the declaration for income tax payers who:

– they earned income in 2014 and are not included in the exemption cases listed in the previous tables;

– they are obliged to keep accounting records (such as, in general, the holders of VAT numbers), even if they do not earn any income.

In particular, they are obliged to present the tax return:

– employees who have changed employers and are in possession of more than one employee or similar (Certificazione Unica 2015), in the event that the tax corresponding to total income exceeds by more than 10.33 euros the total withholding tax suffered;

– employees who directly received INPS or other bodies compensation and sums for salary integration or other reasons, if the deductions were not made incorrectly or if the exemption conditions indicated in the previous tables are not met;

– employees to whom the withholding agent has acknowledged deductions from income and / or tax deductions not due in whole or in part (even if in possession of only one 2015 Single Certification);

– employees who have received salaries and / or income from private individuals who are not required by law to make withholding taxes (for example, family workers, drivers and other house employees);

– employees to whom the withholding agent has not withheld the solidarity contribution (art. 2 paragraph 2 DL n. 138/2011);

– taxpayers who have earned income on which the tax is applied separately (with the exception of those that must not be indicated in the declaration – such as the termination indemnities and equivalent, arrears of compensation, indemnities for the termination of collaboration relations coordinated and continuous, even if received as heirs – when they are provided by subjects who are obliged to make withholding taxes);

– the employees and / or recipients of income to these assimilated to which the municipal and regional surcharges for IRPEF have not been withheld or have not been retained to the extent due. In this case the obligation exists only if the amount due for each additional charge exceeds 10.33 euros;

– taxpayers who have obtained capital gains and capital income to be subjected to a substitute tax to be indicated in the RT and RM tables;

The numerous cases of exemption are listed in point 3 of the instructions to the single model PF

[7] Ires is the acronym for corporate income tax, it is a proportional and personal tax with a rate of 27.50% having as its object the income received by certain legal entities. Before Ires, IRPEG existed, replaced by Legislative Decree 344/2003, in order to modernize the tax regime for capital and companies to align it with the prevailing model in European Union countries. They are required to pay Ires:

– joint-stock companies, cooperative companies and mutual insurance companies resident in Italy;

– public bodies and private entities (excluding companies), as well as trusts, resident in Italy that have, as exclusive or principal object, the exercise of commercial activity;

– public bodies and private entities (excluding companies) as well as trusts, residing in Italy that do not have as their object the exercise of commercial activity;

– finally companies and institutions of any kind, including trusts, with or without legal personality, not resident in Italy.

For the purposes of the tax due , the income subject to IRES is entirely subject to the category of business income. To determine the amount, 27.5% is applied to taxable income. From RAI (Income Taxes present in general accounting), you must remove / add (if they are positive or negative):

· Permanent variations destined not to be reabsorbed in the following periods

· Temporary variations destined to be reabsorbed in the following periods.

The entertainment expenses are deductible in the tax period of sustaining, only if they meet the requirements of inherence and appropriateness depending on the nature of the same of the volume of revenues. In this way we will obtain the “Taxable Income” to be indicated in the tax return.

[8] The subjects obliged to present the annual VAT return are, pursuant to art. 8 paragraph 1 of Presidential Decree no. 322/1998, VAT number holders , even if in the previous calendar year they did not carry out taxable transactions.

Persons who have carried out exclusively tax- exempt operations pursuant to Article 10 of Presidential Decree no. 633/1972 are not obliged to present the annual declaration.

Taxpayers with tax periods coinciding with the calendar year , obliged to present the “Income” and “VAT” declarations , must present the unified annual declaration (so-called “UNICO model”) by September 30 of the year following the reference one.

Therefore all taxpayers “subject to VAT”, obliged to present the tax return, are now required to present the “UNICO model” when the tax period coincides with the calendar year.

On the other hand, the following are required for the VAT return:

a) subjects with a tax period that does not coincide with the calendar year;

b) subsidiaries and parent companies that use the “group” VAT payment procedure;

c) the receivers and the liquidators for the declarations of the subjects subjected to insolvency proceedings;

d) the fiscal representatives, for the declarations of the subjects not resident in Italy and without stable organization in our country.

[9] Article 5 Tuir – Income produced in associated form

1. The incomes of simple companies, in general and limited partnerships residing in the State territory are attributed to each shareholder regardless of their perception, in proportion to their share of profit-sharing.