With sentence no. 1556/2020, the Italian Supreme Court (Corte di Cassazione) reiterated that the systematic conduct of tax evasion can lead to the configuration of the crime of fraudulent bankruptcy, in particular in the event that the bankruptcy is caused by malicious transactions pursuant to art. 223, paragraph 2, n. 2, Italian Bankruptcy Law.
Conducts punishable by criminal law as bankruptcy under the bankruptcy law can be many.
A first case is provided for by art. 216 of the Italian Bankruptcy Law, under which is punishable the entrepreneur, declared bankrupt, who has "distracted, concealed, disguised, destroyed or dissipated" in whole or in part the company assets, or who has "stolen, destroyed or falsified" accounting records to the detriment of creditors.
Such conducts are also attributable, pursuant to Article 223 of the Italian Bankruptcy Law, "to the directors, general managers, statutory auditors and liquidators of companies declared bankrupt (...)".
In particular, pursuant to the second paragraph of art. 223 of the Italian Bankruptcy Law, a further hypothesis of crime is envisaged, according to which "the penalty provided for in the first paragraph of article 216 is applied to the aforementioned persons if (...) they caused the company to go bankrupt with willful misconduct or as a result of malicious operations".
In this regard, it is important to underline that the jurisprudence of legitimacy has specified that the notion of "malicious operations" includes all those behaviors carried out by the administrative bodies of the company, with abuse of their powers or violation of their duties, that involve, considered as a whole, a patrimonial prejudice of the company such as to cause a strong economic - financial ruin.
The Italian Supreme Court also specified that "the notion of "operation "postulates a modality of patrimonial damage deriving not directly from the harmful action of the active subject (distraction, dissipation, concealment, destruction), but from a fact of greater structural complexity found in any corporate initiative involving a proceeding or, in any case, a plurality of coordinated acts. According to the Court it must be considered as subsisting the crime referred to article 223, paragraph 1 of the Italian Bankruptcy Law, when acts of disposal of corporate assets are made and characterized, according to an "ex ante" assessment, by manifest and intrinsic fraudulence, in the absence of any interest in the administered company "(Cass., Criminal Section V, sentence no. 12945/2020).
In other words, from the jurisprudence it is deduced that those single operations which, even without being directly and immediately productive of damage, are in any case such as to create the conditions for a foreseeable failure, can be included in the notion of "malicious operations".
In fact, from the point of view of willful misconduct, the Italian Supreme Court specified that for the configuration of this crime, the intention to directly cause the bankruptcy of the company to the detriment of the creditors is not necessary, as the possibility that, following unlawful conduct, put in place to obtain an unjust profit, a serious economic failure of the company is simply foreseeable.
With regard to tax evasion, in particular, the legitimacy judge established that an unjustified, systematic and protracted conduct of tax evasion, causing an overexposure to the tax authorities, makes the failure of the company predictable and can be qualified as " malicious operation ", pursuant to art. 223 of the Italian Bankruptcy Law. The term "unjustified" is meant to underline that not every tax evasion conduct assumes relevance pursuant to art. 223 of the Italian Bankruptcy Law: that conduct which takes the form of a conscious and voluntary choice not to fulfill tax obligations, while being able to cope with it, will fall within the scope of "malicious transactions", being aware that a potential tax assessment can produce corporate failure.
Consequently, in this particular case, there is a risk of double incrimination: not only for the crime of tax evasion pursuant to art. 10 and 11 of Italian Legislative Decree 74/2000, but also for fraudulent bankruptcy pursuant to art. 223, paragraph 2, n. 2, Italian Bankruptcy Law.
Furthermore, crimes could certainly coexist, without affecting the principle of “ne bis in idem”: the Italian Supreme Court, in fact, with sentence no. 22486/2020, has expressly clarified that the crimes in question "offend different legal assets and have a different purpose": tax legislation protects the tax claim and the successful outcome of collection procedures; bankruptcy legislation, on the other hand, is aimed at protecting creditors, both public and private, in the context of insolvency.
Avv. Francesco Bianchi
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