28 Oct tax crimes

Criminal tax law punishes the violation of tax rules, i.e. the rules regarding taxes. The tax rules are designed to protect the interest of the financial administration in the exercise of assessment powers, control and collection of taxes. Despite the innovations introduced by Law no. 157/2019, which tightened the sanctions linked to the commission of tax crimes, the reference legislation continues to be Legislative Decree no. 74/2000. In some cases, as we'll see, to constitute a tax crime it is not sufficient to engage in conduct contrary to the law described by the law, but it is also necessary that the so-called. punishment thresholds.
The tax offenses with criminal relevance included in the aforementioned Decree are mainly divided into declaratory crimes and documentary crimes (click here for the complete list). Among the declaratory tax crimes: Fraudulent declaration through use of invoices or other documents for non-existent transactions – Art. 2; Fraudulent declaration through other devices – Art. 3; Unfaithful declaration – Art. 4; Failure to declare – Art. 5; Among the documentary tax crimes: Issuance of invoices or other documents for non-existent operations – Art. 8; Concealment or destruction of accounting documents – Art. 10; Failure to pay withholdings due or certified as withholding tax - Art. 10 to; Failure to pay VAT – Art. 10 Tue; Undue compensation for credits not due – Art. 10 quater; Fraudulent subtraction from the payment of taxes – Art. 11.

I) – Fraudulent declaration through use of invoices or other documents for non-existent transactions
Anyone is punished with imprisonment from four to eight years, in order to evade income or value added taxes, using invoices or other documents for non-existent transactions, indicates fictitious passive elements in one of the declarations relating to said taxes. The act is considered to have been committed using invoices or other documents for non-existent operations when such invoices or documents are recorded in the mandatory accounting records, or are held for probation purposes against the financial administration. If the amount of the fictitious passive elements is less than one hundred thousand euros, imprisonment from one year and six months to six years applies. (Art 2 Legislative Decree 74/2000) There is no punishable threshold for this type of crime. Exceeding the threshold of 100.000,00 However, it entails a worsening of the sanctioning treatment.

II) – Fraudulent declaration through other devices
The article in question punishes anyone with imprisonment from three to eight years, in order to evade income or value added taxes, carrying out simulated operations objectively or subjectively or making use of false documents or other fraudulent means capable of hindering the investigation and misleading the financial administration, indicates in one of the declarations relating to said taxes active elements for an amount lower than the actual one or fictitious passive elements or fictitious credits and withholdings, when, jointly: a) the tax evaded is higher, with reference to some of the individual taxes, to thirty thousand euros; b) the total amount of active elements subtracted from taxation, also by indicating fictitious passive elements, is greater than five percent of the total amount of the active elements indicated in the declaration, or anyway, is greater than one million five hundred thousand euros, or if the total amount of credits and fictitious withholdings decreases the tax, is higher than five percent of the amount of the tax itself or in any case thirty thousand euros. (Art 3 Legislative Decree 74/2000) In this case, to ensure that the crime can be said to have been committed, it is necessary to exceed two punishability thresholds: the tax evaded must be more than thirty thousand euros; The total amount of elements subtracted from taxation, must be higher than 5% of the total amount of the active elements indicated in the declaration. Or anyway, is higher than 1,5 million euros.

III) – Unfaithful statement
The crime of unfaithful declaration punishes anyone with imprisonment from two years to four years and six months, in order to evade income or value added taxes, indicates in one of the annual declarations relating to said taxes active elements for an amount lower than the actual one or non-existent passive elements, when, jointly: a) the tax evaded is higher, with reference to some of the individual taxes, to one hundred thousand euros; b) the total amount of active elements subtracted from taxation, also by indicating non-existent passive elements, is greater than ten percent of the total amount of the active elements indicated in the declaration, o, However, is more than two million euros. (Art 4 Legislative Decree 74/2000) This article also requires the exceeding of two thresholds in order to punish the perpetrator of the crime: the tax evaded must be more than one hundred thousand euros; the total amount of the elements subtracted from taxation, must be higher than 10% of the total amount of the active elements indicated in the declaration. Or anyway, is higher than 2 million euros.

IV) – Failure to declare
However, anyone who tries to evade income or value added taxes is punished with imprisonment from two to five years, does not present, being obliged to do so, one of the declarations relating to said taxes, when the tax evaded is higher, with reference to some of the individual taxes to fifty thousand euros. Anyone who fails to report is punished with imprisonment from two to five years, being obliged to do so, the declaration of tax withholding agent, when the amount of unpaid withholdings exceeds fifty thousand euros. A declaration presented within ninety days of the expiry of the deadline or not signed or not drawn up in a form compliant with the prescribed form will not be considered omitted.. (Art 5 Legislative Decree 74/2000) The crime of failure to declare requires exceeding a single threshold of punishment, in fact, the tax evaded must exceed fifty thousand euros.

V) – Issuing invoices or other documents for non-existent operations
The law punishes anyone with imprisonment from four to eight years, in order to allow third parties to evade income or value added taxes, issues or releases invoices or other documents for non-existent transactions. The issuing or release of multiple invoices or documents for non-existent operations during the same tax period is considered as a single crime. If the amount does not correspond to the truth indicated in the invoices or documents, per tax period, is less than one hundred thousand euros, imprisonment from one year and six months to six years applies. (Art 8 Legislative Decree 74/2000) There are no punishability thresholds for this case. However, if the untrue amount is less than one hundred thousand euros, the penalty will be reduced.

WE) – Concealment or destruction of accounting documents
The crime punishes anyone 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. (Art 10 Legislative Decree 74/2000) Also for this case there are no thresholds of punishment.

VII) – Failure to pay withholdings due or certified as withholding tax
The expected penalty is imprisonment from six months to two years for anyone who does not pay within the deadline set for the presentation of the annual declaration of withholding tax withheld due on the basis of the same declaration or resulting from the certification issued to the substituted persons., for an amount exceeding one hundred and fifty thousand euros for each tax period. (Art 10 bis Dlgs 74/2000) The threshold of punishment in this case is set at one hundred and fifty thousand euros for each tax period.

VIII) – Failure to pay VAT
Failure to pay VAT is punishable by imprisonment from six months to two years. In particular, the law punishes anyone who does not pay, within the deadline for payment of the deposit relative to the next tax year, the value added tax payable according to the annual declaration, for an amount exceeding two hundred and fifty thousand euros for each tax period. (Art 10 ter Dlgs 74/2000) For the crime of failure to pay VAT the threshold of criminal relevance is set at two hundred and fifty thousand euros.

IX) – Undue compensation for credits not due
Imprisonment from six months to two years is foreseen for the person who does not pay the sums due, using credits not due as compensation, for an annual amount exceeding fifty thousand euros. Anyone who does not pay the sums due is punished with imprisonment from one year and six months to six years, using in compensation, non-existent credits for an annual amount exceeding fifty thousand euros. (Art 10 quater Dlgs 74/2000) There is a single threshold of punishment equal to fifty thousand euros.

X) – Fraudulent subtraction from the payment of taxes
The article in question establishes that, the subject, that in order to avoid paying income or value added taxes or interest or administrative sanctions relating to said taxes for a total amount exceeding fifty thousand euros, simulately alienates or carries out other fraudulent acts on one's own or on other people's assets capable of rendering the compulsory collection procedure wholly or partially ineffective is punished with imprisonment from six months to four years. If the amount of taxes, penalties and interest exceeds two hundred thousand euros, imprisonment from one year to six years applies. Anyone is instead punished with imprisonment from six months to four years, in order to obtain for themselves or others a partial payment of taxes and related accessories, indicates in the documentation presented for the purposes of the tax transaction procedure active elements for an amount lower than the actual one or fictitious passive elements for a total amount exceeding fifty thousand euros. If the amount referred to in the previous period exceeds two hundred thousand euros, imprisonment from one year to six years is applied. (Art 11 Legislative Decree 74/2000) The threshold of punishment corresponds to the amount of unpaid taxes which must be equal to at least fifty thousand euros. If the amount of taxes exceeds two hundred thousand euros, the penalty is greater.