29 Mar concealment or destruction of accounting records

L’ art. 10. del D.Lgs 74/2000 sanction the conduct constituted by the concealment or destruction of the accounting records or documents whose conservation is mandatory, when it derives the impossibility of the reconstruction of income and the volume of business. In fact, these writings have a fundamental instrumental function of protection of creditors, including the tax authorities, as their conservation allows or in any case facilitates, as a rule, The detection and understanding of the business movement and income, as well as the discovery of the traces of any tax offense. It is evident that an interest in their dispersion can be in order to prevent that detection and hide those traces. On the other hand, if it is true that the lack of accounting records constitutes one of the conditions in order to allow the administration to determine the taxpayer's income ( no longer with analytical-accounting ascertainment) through an inductive assessment and even if this assessment allows the operation of tax presumptions, As such, however, they are devoid of relevance in criminal proceedings. The dispersion of the accounting records also follows a greater difficulty of verifying the overcoming of pre -established levels of evasion, so the legislator – In addition to maintaining the case in question as an autonomous hypothesis of crime with respect to those on declaration-, he decided not to subjugue it to punishment thresholds. This crime therefore aims to safeguard the function of assessment of the financial administration, which seems to be the legal good protected by the crime, anticipating the threshold of criminal relevance to the prodromal conduct to the tax evasion which constitute potential damage to the tax claim of the State. The crime has not undergone amendments following the revision of the sanction system of the Legislative Decree 2015 n. 158, Unless for the redetermination of the sanctioning treatment raised to one year and six months up to six years. The new legislation has as its priority the safeguarding of the freedom of economic soccer, therefore a declared sensitivity for the needs of growth, and the illustrative report underlines some objectives of the revision of the matter of sanctions ( Reduction of the surgery area of ​​the criminal sanction only to cases that have a particular legal disvalue, as well as ethical and social, accompanied by artificial behavior, fraudulent, simulators, objectively or subjectively non -existent, insidious with respect to control activities; the reduction of criminal cases , through precisely the remodeling of the punishment thresholds; the identification of new hypotheses of non -punishment; the attribution to the administrative sanctioning system of the repression of those conduct that are connaged in principle for a different and less disvalue). The typical conduct of the crime referred to in art. 10 D.Lgs 2000 It consists in the concealment or destruction in whole or in part of the accounting records and the documents whose conservation is mandatory so as not to allow the reconstruction of income or the volume of business. The concealment consists in materially hiding the scriptures: The refusal of the delivery of the Scriptures, where it does not translate, But as often happens, In their lack of discovery, remains sanctioned only in administratively. Thus also the conservation of the Scriptures in a place other than that indicated to the Administration pursuant to art. 35 as established by the United Sections 72 n. 633, does not rule relevance, Unless the scriptures are brought to places that exclude their discovery so as to determine their concealment in essence. Destruction consists in physical elimination in whole or in part of the scriptures, or in making it illegible and therefore not suitable for use through abrasions, deletion or other. The material object of the crime conduct consists of the accounting records and documents whose conservation is mandatory according to tax or civil legislation , art. 2214 cc, which distinguishes between absolutely mandatory books ( newspaper , of the inventories, originals of the letters of telegrams and invoices received as well as copies of the letters of the telegrams of the invoices sent) and relatively mandatory writings, such as those that are required by the size of the company. It is discussed if the subject of the crime can also be made up of the "black" CD accounting.

The crime is perfected at the moment the n which, due to the destruction or concealment, becomes impossible to reconstruction of income or business volumes impossible. It is necessary that the conduct described, follow the impossibility of the reconstruction of income or volume of business. These consequences are considered the event of the crime. Destruction gives rise to an instant offense while the concealment to a permanent crime, and therefore the prescription, In this second case, will start from the moment of the cessation of the stay , which is believed to be consequent to the tax assessment. Impossibility of reconstructing income, precisely because they are expected "in whole or in part", it is to be understood in terms of impossibility, even if only relative, that is, when the reconstruction of the income or volume of business is considerably difficult or in any case requires particular diligence, For example, they need cross controls. If then after the commission of facts of destruction or concealment, It was the same taxpayer to make available during the documentation assessment, yes to allow in the substance to come anyway to the reconstruction of income or business movement, This would determine the harmlessness of the fact and in any case the defect of a constitutive element of the crime, and in any case of the subjective element. It is also a specific malice crime, because characterized by the purpose to which the will of the agent must tend, the purpose of escaping or allowing evasion to third parties ( For those who act as an administrator, liquidator etc.. of companies the aim of evasion is understood to be referred to the company or entity ..).

The falsification of the Scriptures, Both material and ideological, Breast from the typical fact of crime, except in possibly integrating other hypotheses of crime, including that referred to in art. 3 D.lgs 74/2000, Just as it has been said, the omitted estate of the accounting records exile , considered less offensive, With the consequence that the omitted estate of the scriptures remains sanctioned only in administrative basis pursuant to art. 9 c. 1 D.Lgs 1997 n. 471. With the modification, the investigative possibilities offers for the fight against criminal evasion phenomena have been enhanced. As anticipated, This article has been modified to sanction the concealment or destruction of the writings or accounting documents, providing for an increase in the penalty. The penalty is accepted from the minimum of a year and six months, up to six years. Then the minimum edict threshold is exceeded (over 5 years in the maximum) provided for the admissibility of the interceptions of conversations and communications, means of research of proof of possible use also for the definition of responsibility for the crimes insurgent in the same investigative and evidentiary context. The extension of the capative tool, already admitted for investigations relating to the crimes of fraudulent declaration documentary pursuant to art. 2 D.Lgs 74/2000 e art. 3 D.Lgs 74/2000 with other artifices, and aggravated fraudulent subtraction pursuant to art. 11, second period, also sanctioned in the maximum with penalty six years old, It appears very significant. The traditional intercepable tax cases in fact, they need judicial triggers achievable with more qualified and complex insights than those necessary for the crime referred to in art. 10 D.Lgs. Obviously this worsening intervention cannot apply to previous facts . But the crime of concealment of the accounting documentation in order to escape, consisting in the temporary or definitive unavailability of the documentation requested by the verifier bodies, has a permanent crime nature, Given that the conduct of concealment persists up to the time of the tax assessment. While the other conduct indicted by the article 10, that concerning the destruction of the accounting records (total or partial physical elimination), It is configured as an instant crime. Therefore in the face of permanent conduct that began under the validity of the most favorable rule that has continued under the less favorable one, the latter should find application.