Recycling, the cassation excludes tax credits and false invoices

An entrepreneur had implemented the crimes in the execution of the same criminal design, aimed at tax evasion.

The money paid to a company for issuing invoices for non-existent transactions does not constitute an illegal enrichment for the crime of income tax and value added (Article 2 of Legislative Decree No. 74/00) and as a consequence cannot give rise to the crime of money laundering

"The benefit, as decided by the Court of Cassation, coincides with the tax savings that are obtained through the entry in the accounts, as well as the subsequent indication of the invoices in the tax returns" states the lawyer Alexandro María Tirelli , expert in criminal law for Associates of international lawyers.

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The benefit, as decided by the Court of Cassation, coincides with the tax savings obtained through the entry in the accounts, as well as the subsequent indication of the invoices in the tax returns.
Recycling, the cassation excludes tax credits and false invoices

Here is the text of sentence n. 36870, filed on September 6, 2013.

A taxpayer was subjected to criminal proceedings for the commission, in competition with others, of various crimes.

In particular, it referred to the crimes of: falsehood in private deed, provided for in art. 485 of the Italian Civil Code, since, in order to carry out a complex tax evasion, it made false signatures in private purchase declarations to be deducted from others, to deduct the related costs.

Embezzlement, in accordance with art. 646 of the Italian Civil Code, as as a general partner of a SAS assigned the sums of money held by the aforementioned qualification, recorded in the accounts as sums used for various purchases, transactions that were subsequently objectively non-existent.

Fraudulent transfer of securities, in accordance with art. 12 quinquies of DL n. 306/1992, since, in competition with the legal representatives of two companies, to facilitate the commission of money laundering alleged against the latter, attributed to the companies themselves, through bank checks, bank transfers and partly in cash, the sum Two million euros.

This sum, fictitiously attributed to the payment of supplies of goods referred to in the false invoices, was returned to the defendant without valid economic reasons and therefore had the sole purpose of facilitating the commission of the crime of laundering. .

In a nutshell, therefore, the entrepreneur had implemented the aforementioned crimes in the execution of the same criminal design, aimed at tax evasion.

Therefore, the crime of fraudulent declaration through the use of false invoices, in accordance with art. 2 of Legislative Decree n. 74/00

However, at the end of the preliminary hearing, the GUP pronounced a trial with no place to proceed for all the crimes alleged against the accused and, in particular, for the crime of fraudulent transfer of value, since it was considered that the fact did not exist . The Prosecutor of the Republic appealed the injunction issued by the GUP.

Remember that art. 12 quinquies of DL n. 306/1992 - entitled "Fraudulent transfer of securities" - punishes with a prison sentence of two to six years, unless the act constitutes a more serious crime, any person who falsely attributes to others the property or availability of money, property or other benefits to circumvent the provisions of the law on the prevention of property or contraband, or to facilitate the commission of one of the crimes mentioned in articles 648, 648-bis and 648-ter of the penal code (Receipt of stolen goods, recycling).

The crime of recycling, in turn, provided for in art. 648-bis of the penal code, punishes outside the cases of competition in the crime, who substitutes or transfers money, goods or other benefits derived from non-negligent crimes, or performs other operations in relation to them, to prevent the identification of their origin criminal

The Court of Cassation, section V criminal, with sentence n. 36870, presented on September 6, 2013, deciding on the merits, definitively confirmed the no place to proceed pronounced by the GUP against the employer.

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Interesting article on tax evasion
  • Jorge Costa Comin
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The benefit, as decided by the Court of Cassation, coincides with the tax savings obtained through the entry in the accounts, as well as the subsequent indication of the invoices in the tax returns.

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