"NEWS July 11, 2016-criminal profiles of voluntary disclosure"

Posted by on Jul 11, 2016


Law No. 186 of 15.12.2014, integrating the L.D. # 167/1990 (arts. from 5-c to 5-f) introduced definitively the procedure of "voluntary disclosure" (or voluntary). In order to tackle tax evasion and to bring out the funds held abroad in violation of the obligations provided by law on fiscal monitoring, the legislator envisaged for certain subjects (individuals, non-commercial entities, partnerships and treated) the ability to activate a conciliatory procedure providing for the payment of taxes and interest due for the tax periods yet ascertainable at the time of presentation of the petition.

As you know, this procedure did not involve any waiver of the tax claim indeed, representing an opportunity to heal their tax position with the only benefit of a treatment less afflictive penalties. And in fact, the legislation has provided for the reduction of the administrative penalty in case of failure or incomplete compilation of RW and picture of sanctions violations with respect to taxes on income and additional tax-related, regional tax on productive activities, value added tax and the violation of the obligations of withholding agents.

Criminal viewpoint, for individuals who have joined the collaborative process, the legislation provides no punishment for certain offences.

However, after the procedure of voluntary collaboration, definitely interesting to examine criminal reflections becomes more closely related to the accession procedure, with specific reference to the hypothesis of no criminal liability expressly provided for under article. 5-d, letter a), l. # 186/14 for numerous tax crimes, specifically for crimes of omission and unfaithful Declaration, of fraudulent misrepresentation by using false invoices or other artifices and offences omitted payment of deemed Tax payment certificate and omitted.

With specific reference to tax crimes, shows the intention of the legislator to exclude criminal liability only for so-called declarative, while offences are left out of the category of crimes not punishable the conduct "issue of invoices or other documents for non-existent", as well as the crimes of "concealment or destruction of documents" and "improper compensation".

Adherence to voluntary collaboration procedure provided for by law No. 186/14 guaranteed immunity for the new offence of terrorism are namely "anyone who, having committed or contest to committing a crime not manslaughter, employs, replaces, transfers, economic, financial, entrepreneurial activity or speculative, money, goods or other benefits from the Commission of this crime, so as to prevent identification of their criminal backgrounds concretely."

This forecast has made it far more palatable the choice to include funds held abroad since even in the international context has gradually stepped up fight against tax evasion through more effective information sharing and increased transparency.

As for the crime of money laundering, presses provide evidence that before 2015 (thus prior to the entry into force of the crime of terrorism are) the money laundering activity could not be disputed who had done, or had competed to commit the offence, which is why it would appear that the benefits offered by the voluntary disclosure are for the benefit of the person who as a result of a crime committed by someone else, he then proceeded to conceal the proceeds.

Of course, assumptions of bad faith can be realized also through the simple adherence to voluntary collaboration procedure since, notwithstanding the possible configuration of offences of forgery, it may happen that following the presentation of the petition are committed criminal offences: just think of an individual who, for example, has made a voluntary disclosure through fictitious interposition or, again, the hypothesis I've omitted the criminal origin of capital subject of emergence.

It will be interesting to see the attitude of prosecutors in relation to the type of offence which may arise due to the close cooperation with the tax authorities that you remember, within thirty days has the obligation to communicate to the Court the successful conclusion of the mediation.

by Luigi Ferrajoli