Following the date established for the adoption of Directive 2017/1371 (the so-called “PIF Directive”), the Official Gazette of 18 October published Law n. 117 of 4/10/2019 denominated “Delegation to the Government for the adoption of the European Directive and implementation of other laws of the European Union”. Within the various areas of action of the law, the Government has powers (art. 3, para. 1 letters e) and h) of the enabling act) to “integrate the provisions of Legislative Decree n. 231 of 8 June 2001 regarding the administrative liability of legal entities, companies and unincorporated associations, expressly including administrative liability for crimes committed by legal entities and for crimes which damage the economic interests of the European Union which are not included in the provisions of the aforesaid legislative decree”, stating that, where necessary “ in addition to the administrative sanctions provided under articles 9 to 23 of Legislative Decree n. 231 of 8 June 2001, the sanctions provided by article 9 of EU Directive 2017/1371 and all other effective, proportionate and dissuasive sanctions be applied to legal entities”.
As far as tax issues are concerned, this provision relates to cross-border VAT fraud which damages the State for an overall amount of no less than ten million Euros. For these crimes, the entities will not only be subject to severe administrative sanctions under Legislative Decree n. 471/1997, but also to the sanctions provided by Legislative Decree 231/2001, according to the Directive and the enabling act.
In fact, the legislator has already provided for this aspect, independently and totally unconnected to the enabling act adopting the Directive, with a recent provision (art, 39, par. 2 of Decree Law 214/2019, being converted into Law), which provides for the sole liability of the Entity (regardless of the amount of the tax being evaded and, therefore, of the seriousness of the conduct) only for fraudulent tax returns using inexistent invoices or other operations (art. 2 of Legislative Decree n. 74/2000). In this way, if on one hand, the problems of coordinating crimes with the same nature regarding VAT and direct taxes would be reduced, on the other hand, the problem of duplicating (if not triplicating) the sanction for the same event, would remain unresolved, with an evident violation of the principle of “ne bis in idem” and neutralizing the recommendation of proportionality of the sanction (in addition to effectiveness and dissuasion) contained in the Directive being adopted. In fact, the same person/legal entity would receive two criminal sanctions, under the definition provided by the ECHR and the ECJ: the one provided by Legislative Decree no. 471 and 472/1997 and the one under Legislative Decree no. 231/2001. In addition, to a prison sentence which would be served on the legal representative of the company.
Another problem deriving from the slavish adoption of the Directive is the required repeal of the national laws “which establish that crimes which harm the economic interests of the European Union under articles 3 and 4 of said directive do not contemplate complicity or attempted crimes”, which would turn the principles of the current tax crime legislation upside down, including the one in which attempted crimes are not punishable. In fact, it is common knowledge that the principal tax crimes under Italian legislation materialize at the occurrence of the event, i.e., with the filing of a tax return (including interim ones) or an F-24 form. Perhaps for the fact that there is a punishment also for interim tax returns, it may not be necessary to adopt any measures making an attempted VAT fraud and, in general, other tax crimes, punishable.
The most significant practical consequence of the reform summarized above is, in any event, the need for Entities to update their structure and organizational model in order to identify all the tax risks connected with their business activities (not only those linked to “serious” VAT fraud), and to analyze and assess them so that they may provide adequate management systems to reduce (if not eliminate) all those situations which could lead to the realization of a tax risk – for example, the identification of a series of internal procedures to effectively check suppliers beforehand, thereby making the test of good faith easier in case of a “carousel fraud” and subjectively false invoices.
It goes without saying, how important and urgent it is to adopt a valid organizational model for those companies which have not already done so.
Prof. Avv. Francesco Colaianni