The Supreme Court of Cassation Criminal Section III, with the ruling 8 to 15 April 2015, n. 15449, it establishes that any action that is deemed simulated, both of alienation or both through other fraudulent acts on the assets of the debtor and are able to prevent the discharge of all or part of the tax credit constitutes the crime of fraudulent subtraction to pay tax. Besides the art. 11 to comma1 of D. lgs. 74/2000 before the legislative amendment by art. 29, paragraph 4, D.L May 31, 2010, n. 78 provided that: “Unless the act constitutes a more serious offense, shall be punished with imprisonment from six months to four years anyone, in order to avoid payment of income tax or value added tax or interest or administrative penalties relating to these taxes totaling more than one hundred million lire, alien fictitiously or performs other fraudulent acts on their own or of others’ goods which may render wholly or partly ineffective collection enforcement proceedings “(text in force since May 31, 2010 – Resulting text after changes Art. 29, paragraph 4, DL May 31, 2010, n. 78). Therefore, even the establishment of a Trust, not only but also other acts, whose elements do detect their institution simulated, which has materialized after a request for taxes due to tax assessment with the thresholds above report, configure as a crime punishable by the aforementioned norm.
The legal object of the crime in question is not entitled to the tax credit, but the generic guarantee given by the obligor goods, so that it can arise even if, after the adoption of measures fraudulent happen anyway and the tax payment its accessories (Cass. Sec. 3, n. 36290 of 18/05/2011). It is, therefore, a crime of danger, against which the relevant criminal conduct may consist of any fraudulent act or intentionally aimed at reducing the capacity of the taxpayer’s own capital, reduction must, with a judgment ex ante, it is suitable from the point of view of quantity and quality, to frustrate in whole or in part, or otherwise make it more difficult, a possible executive procedure (so Cass. Sec. 3, n. 39079 of 04.09.2013). The Supreme Court considered that it constitutes the offense in question in the event of transfer simulated GOODWILL (Cass. Sec. 3, n. 37389 of 05/16/2013), the sale of properties and shares to the partner by an accountant (Cass. Sec. 3, n. 39079 of 09/04/2013), number of land transactions (Cass. Sec. 3, n. 19524 of 04/04/2013), establishment of a fund assets pursuant to Art. 167 cod. civ. (Cass. Sec. 3, n. 40561 of 04/04/2012). The implementation, by administrators, more transactions for the sale of companies and corporate divisions simulated aimed to give the new corporate entities property (Cass. Sec. 3, n. 19595 of 02/09/2011), simulated sale by entering into an apparent contract “sale and lease back” (Cass. Sec. 3, n. 14720 of 03/06/2008).
The existence of the subjective well can be found even when, as in this case, in the face of the knowledge of tax liability, the use of formally lawful activities, such as the establishment of the trust, which has only concrete result to prevent tax collection, lacking any other data demonstration of actual desire to pursue the proper purpose of the legal instrument that has been used.
Additionally, the Supreme Court with the judgment in question has, also, for the first time analyzed the compatibility of the cause of non-punishment provided for by now. 131-bis cod. pen., introduced by Legislative Decree no. 28 \ 2015. The mentioned decree does not provide for a transitional arrangement, so that it must first be verified the possibility of applying the new provision also to proceedings pending at the time of its entry into force. The substantial nature of the institution of new introduction leads to a positive response, resulting retroactivity of the law is more favorable, according to the provisions of Art. 2, paragraph 4 cod. pen.
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