The legislative decree of reform from the tax penaltiesdefinitively approved by the Council of Ministers on 24.5.2024, contains several innovations regarding tax crimes. Among the many changes, the novel aims to define, with greater precision, theoperational scope some CD. crimes of failure to pay.
In particular, the new ones articles 10-BIS And 10-terLegislative Decree 74/2000regulating, respectively, the crime of failure to pay withholding taxes and the crime of failure to pay VATbear a objective condition of punishability, constituted by the unequivocal manifestation of the taxpayer’s desire to avoid, from the beginning, the payment of the tax obligation.
This will will be considered realized and integrated only when, at the time of commission of the crimehave elapsed i terms for the installment of the sums due without the same having been requested, or having occurred decadence from the installment already granted.
Furthermore, a deferral from the date of consumption of both crimes to 31 December of the year following the year in which the annual return is submitted (tax substitute or VAT), in order to allow access to the installment of the debt relating to the tax evaded and, therefore, to make the conditions effective for the fulfillment of the new condition of punishability.
From what has been said it follows that the criminal penalty will apply only in the case in which, at the aforementioned deadline (i.e. 31 December of the year following that of presentation of the annual return), the taxpayer Not have poured out:
- the withholdings resulting from the certification issued to those replaced for a amount exceeding euro 150,000 for each tax period;
- or, value added tax due on the basis of the same declaration, for a amount exceeding €250,000 for each tax period;
to condition which, in both cases, Not is in progress, pursuant to thearticle 3-BISLegislative Decree 462/1997one extinction of the tax debt through installment.
With reference to this last hypothesis, then, the new text establishes that, in case of decadence from the benefit of installment plan, pursuant to thearticle 15-terPresidential Decree 602/1973the taxpayer is punished if the amount of the residual debt is greater, respectively, than 50,000 euros (for the crime of failure to pay withholding taxes former article 10-BISLegislative Decree 74/2000) it’s at euro 75,000 (for the crime of failure to pay VAT former article 10-terLegislative Decree 74/2000).
There new formulation of the legislative decree that regulates the tax penalty system should provide, in addition to the aforementioned condition of non-punishment, also a mitigating circumstance.
In detail, the new article 13-BISLegislative Decree 74/2000unlike the previous formulation which provided for the taxpayer the possibility of benefiting from the mitigating circumstance and the consequent discount of up to half of the penalty, in addition to the non-application of accessory penalties, only in the case of full repayment of the debt before the start of the trialshould provide that: “if before the close of the hearing, the debt is being repaid by instalments also following the conciliation and acceptance procedures for the assessment, the accused will give it communication to the judge who proceeds, attaching the relevant documentation, and will inform the Revenue Agency at the same time with an indication of the relevant criminal proceedings”.
In this case it is foreseen, pursuant to paragraph 1-BIS, of article 13-BISLegislative Decree 74/2000the Suspension of the trial for a year. Furthermore, the judge has the power to extend such suspension, for one time only, of three more monthsprovided that the Revenue Agency communicates that the payment of the installments is regularly in progress and the judge deems the extension necessary to allow the full payment of the debt.
Finally, it is important to underline that the new decree, with the introduction of paragraph 3-BIScited above article 13, Legislative Decree 74/2000should establish that: “the crimes referred to in articles 10-bis and 10-ter are not punishable if the fact depends on causes not attributable to the author occurred, respectively, after the withholdings were made or the value added tax was collected”.
