Article 1 of Legislative Decree no. 87 of 14 June 2024 (decree on the reform of sanctions) introduces important changes to the provisions on income tax and VAT crimes contained in Legislative Decree no. 74/2000, inter alia, with reference to: the introduction of the prohibition de ne bis in idem substantial, the definition of undue compensation of non-due and non-existent tax credits, the amendment regarding failure to withhold and failure to pay VAT.
The prohibition of ne bis in idem is substantial
The decree reforming sanctions provides for an important derogation to the ne bis in idem system , that is, to the mechanism that allows the simultaneous or progressive application of two different sanctions, criminal and administrative, at the end of two distinct proceedings, however, relating to the same unlawful act. Well, as a result of the law reforming sanctions:
- the sentences rendered in the tax proceedings, which have become irrevocable, and the acts of final assessment of taxes in the administrative office, even following adhesion, having as their object violations deriving from the same facts for which the criminal action was exercised, can be acquired in the criminal proceedings for the purposes of proving the fact ascertained therein;
- the irrevocable sentence of acquittal because the fact does not exist or the defendant did not commit it, pronounced following a trial against the same subject and on the same material facts which are the object of evaluation in the tax trial, has, in this, the force of res judicata, in every state and degree, with regard to the same facts.
Non-existent and undue credits and non-punishability in cases of objective uncertainty.
Given the need represented in the delegation law to introduce, in accordance with the jurisprudential orientations, a more rigorous regulatory distinction, including sanctions, between the types of undue compensation of non-due and non-existent tax credits, the delegated legislator introduces, for the first time in the criminal field, the definition of the aforementioned tax credits, establishing (but the definitions are also valid from the tax perspective by virtue of the referral made by the amended article 13, paragraph 4, of Legislative Decree no. 471 of 1997) the following:
- “non-existent credits†means: “ 1) credits for which the objective or subjective requirements specifically indicated in the relevant regulatory discipline are missing, in whole or in part; credits for which objective and subjective requirements, implemented with materially or ideologically false documents, simulations or artifices †( new article 1, paragraph 1, letter g-quater), of Legislative Decree no. 74/2000 );
- “non-due” credits are understood to mean:  credits used in violation of the methods of use provided for by the laws in force or, for the relative excess, those used in a measure greater than that established by the reference provisions; credits which, despite the presence of the subjective and objective requirements specifically indicated in the reference regulatory discipline, are based on facts not included in the credit attribution discipline due to the lack of further elements or particular qualities required for the purposes of recognition of the credit; credits used in the absence of the prescribed administrative obligations expressly provided for under penalty of forfeiture ” ( new article 1, paragraph 1, letter g-quinquies), of Legislative Decree no. 74/2000).
The new crimes of failure to pay withholdings and VAT and the new causes of non-punishability.
Significant are the changes in the matter of failure to pay withholdings pursuant to article 10- bis  and failure to pay VAT pursuant to article 10- ter of Legislative Decree no. 74 of 2000.
The delegated decree provides that in cases of failure to pay withholdings due and certified for an amount exceeding €150,000 for each tax period (new article 10- bis  of Legislative Decree no. 74/2000) as well as VAT for an amount exceeding €250,000 for each tax period (new article 10- ter  of the same legislative decree), the penalty of imprisonment from six months to two years applies if:
- the tax debt is not in the process of being paid off through installment payments pursuant to Article 3- bis  of Legislative Decree no. 462/1997;
- the forfeiture of the benefit of the installment plan occurs, pursuant to article 15- ter  of Presidential Decree no. 602/1973 and the amount of the residual debt is in any case greater than €50,000 (article 10- bis ) or €75,000 (article 10- ter ).
The delegated legislator postpones the moment in which the crime is committed, no longer with the failure to pay the amount due if “above the threshold”, within the deadline set for the presentation of the relative annual declaration but with the failure to pay the amounts “above the threshold” by 31 December of the year following that of the presentation of the declaration itself; the thresholds remain unchanged: € 150,000 for cases of failure to pay withholdings and € 250,000 for failure to pay VAT.Â
The legislator has therefore separated the crimes of failure to pay from the moment of filing the declaration, to connect them, instead, to the taxpayer’s will not to proceed with the payment of the amount due, not even through installments of the sums following receipt of the friendly notice. And it is precisely in order to coordinate the criminal provisions with the tax provisions that the new paragraph 2-bis is introduced in article 3- bis  of Legislative Decree 462/1997. Furthermore, the punishability of the crimes of failure to pay is excluded if the fact depends on causes not attributable, subsequent to the carrying out of withholdings or the collection of the value added tax (new paragraph 3- bis , of article 13 of Legislative Decree no. 74/2000).
DISCLAIMERÂ : This newsletter provides general information only and does not constitute legal advice from Macchi di Cellere Gangemi. The author of the article or your contact in the office are at your disposal for any further clarification.
