28 Dec concealment or destruction of accounting records

the crime of concealment or destruction of accounting documents is provided for by art. 10 D.L.gs n.74/2000, which verbatim provides that "Unless the fact constitutes a more serious crime, anyone is punished with imprisonment from three to seven years, in order to evade income or value added taxes, or to allow tax evasion by third parties, hides or destroys in whole or in part the accounting records or documents whose preservation is mandatory, so as not to allow the reconstruction of income or turnover". The legal asset object of criminal protection of the crime of concealment of accounting documents is the state interest in the taxpayer's fiscal transparency, since the incriminating rule sanctions the obligation not to remove the mandatory writings and documents from the investigation. The conduct sanctioned by art. 10 D.Lgs. n. 74 of the 2000 consists of the destruction or concealment of accounting records or documents whose conservation is mandatory, in such a way as not to allow the reconstruction of income or turnover. Unlike destruction, which creates a hypothesis of instant crime, which is consumed at the moment of suppression of the documentation, on the contrary, 2 concealment – which takes the form of the temporary or definitive unavailability of the documentation by the verifying bodies – constitutes a permanent crime, which reaches its consummatory moment at the time of the inspection and that is when the agents ask to examine said documentation. L’art. 10 del D.Lgs. 74/2000 sanctions both the destruction of accounting records, which, achieved with the elimination of documentation by eliminating paper support with erasures or abrasions, configure, as just said, a crime of an instantaneous nature, both the total or partial concealment of the writings themselves and, continuing the obligation to display as long as the control by the verifying bodies lasts, instead it gives rise to a crime of a permanent nature; so, if the same documentation is first hidden and subsequently destroyed, the material concurrence of the two crimes will be established. The criminal hypothesis in question constitutes a crime of concrete danger, in the sense that, if the destruction or concealment of the accounting records or documents whose conservation is mandatory is partial, there must be a significant degree of impossibility of reconstructing the income, while the total concealment of said writings, resulting in the absolute impossibility of reconstructing the income subject to tax, integrates the material element of the crime in question. The active subject of the crime can be "anyone". The case in point, indeed, it is not aimed solely and exclusively at those obliged to keep accounting records; the incriminating rule, indeed, it also includes "documents" for which no particular accounting regime is envisaged, so that it is a common crime. For subjects other than the taxpayer, think for example of an employee or consultant required to keep tax documents. The subjective element required for the integration of the crime is specific intent, given for the purpose of evading income or value added taxes, or to allow tax evasion by third parties, concealing or destroying, in whole or in part, the accounting records or documents whose conservation is mandatory. This is a crime of concrete danger, as it is not necessary for damage to the Treasury to occur. The material object of the conduct are the "accounting records" or the "documents whose conservation is mandatory" for tax purposes. The accounting records whose conservation is mandatory include not only those formally established in compliance with specific regulatory provisions, but also those mandatory in relation to the nature and size of the company (es. cash book, warehouse records, scheduler and the like) as well as the correspondence carried out during individual transactions, whose conservation obligation must be traced back to art. 22, comma 3, the D.P.R. n. 600/1973. In the event that the accused deduces that the accounting records are held by third parties e, however, does not show a certificate issued by the subjects themselves specifying the records in their possession or they oppose access or do not show all or part of said documentation, the criminal judge can be convinced of the effective keeping of accounts by third parties from evidence, also declarative, further and different from the aforementioned certification. The conduct must lead to the impossibility of reconstructing income or turnover. The crime is considered completed when the concealment or destruction of the accounting records results, as a direct effect, the impossibility of reconstructing the income situation or the reconstruction of the taxpayer's turnover. The crime is not committed if it is possible to reconstruct the income and turnover through the remaining documentation that is exhibited or traced at the taxpayer's headquarters or at his domicile or thanks to the tax communications that the taxpayer himself (tax returns, VAT returns, deposited financial statements) did to the Financial Administration. To conclude this brief examination of the essential elements of the crime of concealment or destruction of accounting documents, Please remember that the incipit of the art. 10 cit. reads “Unless the act constitutes a more serious crime…”. The salvation clause included in the art. 10 del D.Lgs. 74/2000 serves to exclude the material correlation between the tax offense and the bankruptcy offense in all cases in which the "same fact" constitutes a more serious crime. That, indeed, establishes by law the subsidiarity between the less serious tax cases (now punished with imprisonment from three to six years) and the most serious bankruptcy case of fraudulent documentary bankruptcy (from three to ten years of imprisonment), in the sense that the tax crime applies only in the alternative, when it is not possible to configure fraudulent bankruptcy. Well, the Cassation, as mentioned before, intervened with two very recent rulings to clarify some controversial aspects of the case covered by this discussion. In more detail, with sentence no. 42913 of the 21 last September, la S.C. has established that for the purposes of the configurability of the crime referred to in art. 10 D.L.gs. 10 March 2000, n. 74, mere omissive behavior is not enough, i.e. the failure to keep accounting records, but you need a “what is more important” with a commission content consisting in the concealment or destruction of accounting documents whose establishment and keeping is mandatory by law, implying the extension to simply omissive hypotheses a violation of the principle of legality and of the prohibition of analogy in malam partem, in contempt of the preventive and punitive function of the law. In the present case, the judges of legitimacy examine the hypothesis of the invoice, which must be issued in duplicate and the discovery of one of them at the third party recipient of the document can lead to the inference that the failure to find the other copy at the issuer is a consequence of its destruction or concealment. Lingering, then, on this last case, the Court highlights that the conduct of concealment includes not only the school hypothesis of material concealment, but also the case of documentation not declared to the Treasury and not indicated in the accounting records, thus hiding its existence from the tax authorities. Concealment consists, indeed, in the temporary or definitive unavailability of the documentation by the verifying bodies and is achieved by materially hiding the document in such a way as not to allow the reconstruction of income or business volume. Nor is the note that this is possible using company account statements, if not even easy, reconstruct the amount of income, as it is now a solid principle in jurisprudence that in accordance with which, regarding tax crimes, the crime referred to in the art. 10 D.Lgs. 10 March 2000, n. 74, is integrated in all cases in which the destruction or concealment of the company's accounting documentation jeopardizes or makes it difficult to reconstruct the operations, remaining excluded only when the economic result of the same can be ascertained on the basis of other documentation kept by the entrepreneur and, on the contrary when it is necessary to proceed with the acquisition of the missing documentation from third parties, as further investigative activity is necessary as in the case under examination, in which further investigative activity to access bank accounts would have been necessary, to reconstruct the amount of turnover. With the second ruling which is the subject of this comment (sentence no. 42288 of the 27/09/2022), the Stoats, instead, define the operational field of the case pursuant to art. 10 D.Lgs 74/2000, clarifying the scope of application of the subsidiarity clause located at the incipit of the law being discussed. For the Court of Cassation, therefore, the restrictive clause contained in the art. 10 D.LGS. 74/2000, according to which the conduct of concealment or destruction of accounting records or documents, whose conservation is mandatory, it must be such that it does not allow the reconstruction of income or turnover, is aimed on the one hand at limiting the typical conduct by relating the aforementioned impossibility of reconstruction to the removal by the unfaithful taxpayer of the records or documents necessary for the assessment and, on the other, to outline the protected legal asset, that is, fiscal transparency, understood in its broadest sense of interest in the correct exercise of the public tax assessment function. This does not translate into the impossibility in absolute terms of proceeding with the reconstruction of the taxpayer's economic management for the tax year concerned, the elements of which can well be found, through the investigative tools available to the Financial Police, also aliunde (for example through cross-checks with the subjects to whom the same operations refer or with public registers or by resorting to black accounting), but this nevertheless has repercussions on the configurability of the crime due to the importance it has, The aggravation of the instability punished by art, the offensiveness of the conduct. It is up to the judge to ascertain, based on a comparative evaluation of existing and missing documentation, whether the taxpayer's fraudulent behavior is likely to jeopardize the evidentiary function of the taxable assets that the law assigns to mandatory documentation and records.