An expert criminal and civil lawyer in Livorno

"Handcuffs for tax evaders" is an ancient slogan, which dates back to the early 1980s when the Visentini Law was launched which profoundly renewed the Italian criminal tax system.

In the last few years, however, sensitivity and attention towards tax offenses has increased both at legislative and jurisprudential levels.

If up to twenty years ago true criminal law had to do with blood and passion, today the focus has shifted to money and compliance with the constitutional obligation to contribute.

The problem is that criminal law is still built on behavior models designed for crimes against the person or against his or her individual assets, which are difficult to reconcile with the structures of tax law, which are functional in guaranteeing a certain revenue to the Treasury through mechanisms now automated and in any case no longer managed directly by the entrepreneur.

If a husband catches his wife in flagrant adultery, he can evaluate how to behave and if he decides to perform a violent act, he assumes full responsibility for it.

His lawyer may perhaps ask for an expert opinion on his ability to understand what he has done, but it is not disputed that in the example above, there is the expression of a criminal will.

Much more nuanced and articulated is the assessment of the psychological coefficient in the context of corporate crimes.

It is frequent that in commercial companies there are changes in corporate offices and even more frequent that these changes occur when the business activity goes into crisis.

Often directors who have mismanaged a company that is close to collapse will try to pass the office of director to other people.

Very frequently these are external subjects, attracted by the prestige they assume with a social position (even if only as a member of a board of directors) or employees who are asked to "get their hands dirty" in the management of the company in order to save it, as well as keep their own jobs.

The result: the new director finds himself in charge of a company facing a liquidity crisis, which has to deal with angry suppliers and agitated employees.

To keep the boat afloat, the decision is often quickly made to ensure business continuity by paying wages and invoices and postponing tax deadlines.

However, the postponement soon becomes a real default and the Inland Revenue, in addition to transmitting the recovery of the credit to its "armed wing" Equitalia (as it will be called), transmits the crime report to the Public Prosecutor's Office which registers the unfortunate new director in the register of suspects and will refer him to trial for all tax offenses related to non-payment of taxes.

When the administrator receives the judicial act, he feels innocent, having a clear conscience as to his motives.

He visits the lawyer and says to him: “I didn't put a euro in my pocket. I tried to save a company. The tax money was not there. What could I do? "

Unfortunately, the judges don't think so.

Those who write the laws and those who apply them have a fundamental interest: to guarantee the efficiency of public resources, that is to say, to protect the tax authorities, which is the state.

Therefore personal honesty and disinterest are not enough to be absolved.

Something more is needed. A useful "Vade mecum" is contained in a recent sentence of the Court of Cassation Section III Criminal n. 18834 published on 19.04.2017.

1) First of all, never take on corporate positions (chairman, director, member of the board of directors or auditor) without having first seen the financial statements. According to the Court of Cassation, in fact, taking on the corporate role presupposes their careful reading. Basically, you can't say, "I didn't know there was debt." One who administers, one might say, has soup. It is a famous joke by Totò who, not by chance, anticipated the times with the film "I tartassati";

2) In case of economic difficulties of the company, activate clear and transparent paths for the company crisis. In fact, if the administrator, even in the presence of debts made by previous managements, activates a series of initiatives, such as the request for repayment, the increase in share capital, the contribution to share capital with the funds of the shareholders, makes it controllable and verifiable by the judge his corporate safety strategy;

3) Documenting is essential. Even in companies such as cooperatives, where the chairman is in any case liable for social debts, shareholders' meetings and boards of directors should be convened with clear agendas that allow, in the event of tax defaults, that the company management has set itself the serious objective to guarantee payment of tax deadlines.

In Latin an expression entered in judicial jargon is used: "ad impossibilia nemo tenetur", "Nobody can do what is impossible". But to prevent this from becoming the comfortable screen for unscrupulous entrepreneurs, who hide their desire to evade taxes behind the refrain "There is a crisis", the Supreme Court has set a series of stakes.

"In other words, the suspect must attach proof that it is not otherwise possible for the taxpayer to find the resources necessary to allow him to correctly and punctually fulfill tax obligations, despite having implemented all possible actions, even those unfavorable for his personal assets. This is aimed at allowing him the sums necessary to discharge the tax debt, without having succeeded for reasons beyond his control and not attributable to him "(cited sentence).

Defending oneself successfully from a criminal tax charge is therefore difficult, but not impossible: however, it is essential that the suspect relies not only on an accountant experienced in the ordinary management of the company, but who finds a lawyer with specific expertise in the sector and entrusts him the assignment promptly.

Being able to save an unfortunate administrator, as has happened to me on various occasions in various courts from Milan to Florence and also in the Court of Appeals and up to the Court of Cassation, is one of the best satisfactions for a modern criminal lawyer: it is a way to bring out the truth of the business reality (often much more complex and difficult than it may seem to the prosecutors) and the difficulty of the entrepreneur's role.