Update of the "231 Model" to tax offenses
Throughout Italy, activities to update corporate organizational models and to introduce safeguards aimed at avoiding the commission of tax crimes are in full swing.
This depends on the fact that, for just over a year (see: Law Decree 124 of 2019 converted in Law 157 of 2019; Legislative Decree 75 of 2020), the law maker extended to the tax field, the administrative liability of entities, already established by Legislative Decree 8 June 2001, n. 231.
Thus, today, the commission of some tax crimes can involve - in addition to the normal tax penalties and the criminal liability of the director and of the person who committed the violation - also the adoption of prohibitive measures to the exercise of the business activity or the imposition of additional financial penalties, which can reach just under 1.6 million euros for each violation.
There are eight offenses for which the administrative liability of the entity has been envisaged:
1) fraudulent declaration through the use of invoices or other documents for non-existent operations (Article 2, paragraphs 1 and 2-bis, Legislative Decree no. 74 of 2000);
2) the fraudulent declaration through other artificial means (art. 3, legislative decree n. 74 of 2000); unfaithful declaration (Article 4, Legislative Decree No. 74 of 2000);
3) the omitted declaration (art. 5, Legislative Decree n. 74 of 2000);
4) issuing invoices or other documents for non-existent transactions (Article 8, paragraphs 1 and 2-bis, Legislative Decree No. 74 of 2000);
5) the concealment or destruction of accounting documents (Article 10, Legislative Decree No. 74 of 2000);
6) undue compensation (Article 10-quater, Legislative Decree no. 74 of 2000);
7) fraudulent evasion of tax payment (Article 11, Legislative Decree No. 74 of 2000);
8) "smuggling" as outlined in Title VII, Chapter I, TULD, Presidential Decree n. 43 of 1973 to arts. from 282 to 301 (Article 25-sexiesdecies, Legislative Decree No. 231 of 2001).
The adoption of organizational models aimed at avoiding the commission of offenses for which the administrative liability of the entity is envisaged is established by the same Legislative Decree no. 231 of 2001 and involves two direct and one indirect benefits.
The first benefit is to avoid, through measures on the company organization, that the staff adopts behaviors (such as the payment of insufficiently documented invoices) that could expose the entity to suffer the consequences of a very serious fiscal-criminal-administrative infringement complaint.
The second advantage consists in the responsibility in case of commission of crimes. In fact, if the entity has adopted an organizational model, an operating procedure and other adequate measures to avoid the commission of tax crimes, it is the same Legislative Decree no. 231 of 2001 to recognize the non-applicability of the heavier sanctions.
The third benefit is of a reputational and commercial nature. The increasing diffusion of companies that adopt organizational models and ethical codes means that the companies that do not have them will gradually end up on the sidelines of the market, either because of the substantial inability to adapt to the increasingly stringent documentary requests that will come from potential customers and because - it is already happening - those who will have well-structured organizational models and codes of ethics will demand the same level of compliance from their suppliers.
Therefore, it seems appropriate to avoid thinking that the question concerns only large companies. Even medium-sized companies, if they want to compete at a high level in the Italian market, must be equipped with the "Model 231" updated to tax offenses, taking care to introduce tailor-made control measures so that, on the one hand, the effective implementation of the principles established by the legislator is obtained and, on the other hand, avoiding excessive burdening of the activities of the various company components, undermining their efficiency.
Avv. Riccardo Langosco di Langosco LL.M.
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