08 Jun fraudulent documentary bankruptcy

L’art. 216, co.1, nr. 2 l.f. “envisages two alternative cases: that of theft or destruction of books and other accounting records; that of keeping accounts in such a way as to make it impossible to reconstruct the movement of the bankrupt's business and assets". To certain requirements, the failure to keep accounting books can be equated and therefore fall within the first hypothesis of bankruptcy - from theft or destruction of accounting books - "given that the incriminating rule, punishing the keeping of accounts in such a way as to make it impossible to reconstruct the balance sheet and turnover, a fortiori it also intended to punish the entrepreneur who did not establish the aforementioned accounting, even if only for part of the life of the company". The Supreme Court of Cassation found that "the conduct relating to the first hypothesis […] integrate the details of fraudulent bankruptcy only when supported by specific fraud", which becomes a dividing line between said hypotheses - to which it comes (as has been said) the hypothesis of failure to keep accounting records is also equated - and the case of simple documentary bankruptcy (in art. 217 l.fall.), also punishable as a crime. As in fact recalled by a recent ruling of the Supreme Court, the failure to keep accounting books can constitute the case of fraudulent documentary bankruptcy referred to in the first part of the art.. 216, co. 1 nr. 2 only if "it is ascertained that the purpose of the omission was to cause prejudice to creditors, given that otherwise it would be impossible to distinguish this case from that one, similar from a material point of view, […] punished under the title of simple documentary bankruptcy" pursuant to art. 217 l.fall. (Like this, Cass. Sez. V, 17 January 2023, n. 4352.). At the same time, the failure to keep accounting records can never integrate the hypothesis of fraudulent documentary bankruptcy with general intent referred to in art.. 216, co. 1, nr. 2 l.fall, Since, from a material point of view, "the entrepreneur cannot at the same time fail to establish the accounting books and keep them "in such a way as to make it impossible to reconstruct the assets", the latter conduct which presupposes the fraudulently caused unreliability of actually existing records" (Cass. 4352/2023, cit.). However, upon closer inspection, these conclusions are complicated where the failure to keep is partial - i.e. limited to a few years or a few months of the company's life - and could rather constitute a failure to update the accounting records and therefore, at least in the abstract, fall within the category of fraudulent documentary bankruptcy referred to in art. 216, co. 1 nr. 2 (second part). In this sense, called to rule on a similar matter, the Supreme Court stopped to outline the differences between simple documentary bankruptcy and the case of fraudulent documentary bankruptcy with generic intent referred to in the second part of the art.. 216 co. 2 l.fall. and concerning the keeping of accounts in such a way as to make it impossible to reconstruct the movement of the bankrupt's business and assets. As made abundantly clear, the two cases diverge in many aspects: a) “for the different material object (the only accounting records required in simple bankruptcy, against all documentation necessary for the complete reconstruction of the assets and movements of the company)” (Cass. 4352/2023, cit.); b) for the different conduct (failure to establish and irregular maintenance, Cass. 4352/2023, cit.); c) for the requirement "represented by the impossibility of reconstruction (which represents the event of the irregular holding) element, instead, unrelated to the fact described in the art. 217, second paragraph, of bankruptcy law" (Cass. 4352/2023, cit.). Objective differences that, consequentially, they also produce consequences on a subjective level; indeed, “malicious intent, generico, which supports the case of general documentary fraudulent bankruptcy, awareness of the irregular keeping of accounting documentation must be supported, as much as the conscious representation of the subsequent impossibility of reconstructing the bankrupt's assets and business movements (albeit in terms of eventualities)” (Cass. 4352/2023).Furthermore, the Supreme Court intended to make a clear distinction "in reference to the line of distinction between fraudulent documentary bankruptcy with general intent and the corresponding hypothesis with specific intent". In particular, the Court of Cassation clarifies in the first instance that the rule referred to in art. 216, co. 1 nr. 2 protects "the smooth carrying out of the curatorship's operations", which are hindered "not only by material false documents, but also – and above all – by ideological ones, which provide an unfaithful representation of the accounting data". Which is why “the partial omission of the annotative duty, which concerns one or more accounting books, integrates the case of documentary bankruptcy with general intent; this is because it is the single, omitted annotation, or even partial annotation, they presuppose, in any case, the existence of the reference accounting entry, an essential element for the configuration of bankruptcy with general intent; Furthermore, such conduct of ideological falsification, which make the representation contained in the writing incomplete and/or incomplete, concrete, in essence, as many falsifications by omission, assessable for the purposes of an impossibility or difficulty in reconstructing the accounting and entrepreneurial events of the company". On the other hand, this impossibility or difficulty in reconstructing the accounting events of the bankrupt company is common to all the hypotheses referred to in the art. 216, co. 1 nr. 2 l.fall: then, “let the estate be confused, incomplete, falsified accounting, and the failure to maintain it - whether total or partial - or the conduct of theft, destruction, concealment and falsification”. Consequentially, as has been said in relation to the relationships between the first part of the fraudulent documentary bankruptcy and the case of simple documentary bankruptcy, it is once again the specific intent that distinguishes the two hypotheses referred to in the art. 216, co. 1 nr. 2 l.fall.: indeed, “only in cases of subtraction, destruction, concealment… an additional element is required, i.e. the prejudice for creditors (or the unfair profit that the agent intends to achieve, for oneself or for third parties)”. It therefore follows that, to integrate this last form of bankruptcy, the specific intent to cause harm to creditors is necessary; “It is not required, therefore, an effective prejudice to the interests of the creditor class, but only that the conduct of the active subject of the crime is supported by the aim of causing harm to creditors (or to obtain an unfair profit for oneself or others)” (Cass. Sez. V, 7 July 2023, n. 42856).