Tax crimes: the concurrence of members of the administrative body

The Court of Cassation, sec. III., in ruling No. 31017 of 16/05/2023, affirmed an important principle regarding the possibility of extending, by way of concurrence, criminal liability for tax crimes even to directors who, although endowed with broad managerial powers, did not directly engage the sanctioned conduct (in this case, the submission of the company's declaration, in the context of which some subjectively nonexistent invoices were "used").

In particular, the case at hand concerned the accusation, initially directed against only one director of having committed the crime of fraudulent declaration (pursuant to Article 2 of Legislative Decree No. 74/2000), for having submitted the declaration of the company (a S.r.l.), with therein indicated costs arising from invoices for subjectively nonexistent transactions (totaling 318,483.22 euros).

In particular, the issue under consideration by the Court of Cassation concerned the possibility of convicting, the other two directors of the company, who, although they did not directly carry out the illegal conduct, had broad managerial powers, exercisable separately, and, according to the prosecution, the ability to influence company decisions, for the aforementioned crime. In fact, in the course of the second instance trial, the Court of Appeal, while starting from the assumption that, as regards the declaration for income and value-added tax purposes is concerned, company directors are liable, exclusively, for the breach of the declaratory obligation placed directly on them, had reached the conclusion that the other directors were also liable jointly and severally, since they, as holders of the power of disjointed administration, were to be considered involved in the company's management choices and, therefore, concurring in the aforementioned crime, for failing to prevent it, in violation of the duty of control and supervision over them.

The appellate ruling was, however, overturned precisely on this specific point by the Supreme Court.

The judges of legitimacy, in fact, referred to one of the few precedents on the subject (Cass. no.30689 of 04/05/2021), where the Court, precisely on the subject of the crime of fraudulent declaration through the use of invoices for non-existent transactions, had affirmed that "in the case of a crime deliberated and directly carried out by individual members of the board of directors of a joint stock company in which no specific proxy has been conferred , each of the other directors is liable by the way of concurrence for failure to prevent the event, where a willful violation of the specific obligation to supervise and control the performance of corporate management arising from the position of guarantee, pursuant to Art. 2392 Civil Code."

Precisely on the basis of this precedent, as well as the established orientation on fraudulent bankruptcy (among others Sect. 5, n. 33582 of 06/13/2022), the Court specifies that directors, in cases of tax crimes, are liable exclusively if it is proven that they have willfully contributed to the crime, and by this it is understood that they can be liable, unlike for civil liability, only (i) if they actually had knowledge of the commission of the tax offenses (in the present case, false invoicing) and (ii) had not acted to prevent the related commission of the crime (e.g., the submission of the declaration with fictitious liabilities indicated therein), an obligation of initiative incumbent on them  by virtue of the position of guarantee under Art. 2392 Civil Code. 

In the present case, among other things, due to the differences found in the subjective element required for the crime to be committed, it is not considered that the principle set out in cases of fraudulent bankruptcy can be borrowed, where case law holds that actual knowledge of the offences can be overcome by the presence of multiple irregular social conducts, which, acting as "warning signals," would have caused the director to "accept" the risk of the commission of the bankruptcy crime (thus constituting, therefore, the eventual willful misconduct)

In light of the above, the Supreme Court overturned the judgment of the Court of Appeal, holding that the mere and general involvement of the two directors in the management decisions was not sufficient to definitively hold that they were, likewise, actually involved in all economic transactions and, therefore, materially aware of the offence. Moreover, the incriminated transactions (which were subjectively nonexistent, i.e., they had been carried out, but with different person from the one indicated in the invoice) could well have been carried out only by the other director (affecting less than 10% of the turnover) and not have been made aware, in their irregularity, to the other members of the board of directors.

Dott. Pasquale Ambrosio Cepparulo

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