With sentence no. 20793/2021 the Italian Supreme Court established that the acquittal due to prescription does not prevent the confiscation of the profit of the tax offense, provided that the existence of the fact has been ascertained.
The mentioned sentence concerned the case of the legal representative of a S.p.a. convicted in both first and second instance for the crime referred to in art. 10ter of the Italian Legislative Decree 74/2000 (failure to pay VAT); in addition to the prison sentence, the confiscation of the sums of money relating to the crime ascribed to the subject had also been ordered, which, pursuant to art. 12bis of the aforementioned decree, is always mandatory.
However, in the context of legitimacy, the prescription of the crime was noted: therefore, upon the annulment without postponement of the first instance sentence, the problem arose of a decision by the Italian Supreme Court regarding the confiscation of the money.
Art. 12bis of Italian Legislative Decree 74/2000, in fact, provides for two different types of confiscation: a direct confiscation, which directly affects the profit of the crime; a confiscation "by equivalent" or "of value", applicable where it is not possible to carry out the first, which affects money or goods not directly related to the crime, but of a value equivalent to the profit of this.
For both types, the Italian Supreme Court believes that they are also applicable in the event of a declaration of prescription of the crime, provided that both the existence of the fact and the criminal responsibility of the accused have been ascertained.
Therefore, in the event that the offense is prescribed pending an appeal, the Court of Appeal or the Italian Supreme Court will be required to decide on the appeal for the effects of the confiscation, after ascertaining the responsibility of the subject, as provided for by the art. 578bis of the criminal procedure code.
Avv. Francesco Bianchi
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