Omitted Declaration

Omitted Declaration

The omitted declaration is one of the most recurrent offences in tax criminal law and arises when the taxpayer, despite being obliged to do so, fails to file the annual income tax or VAT return, thereby exceeding the criminal relevance threshold provided by law.

The provision is contained in Article 5 of Legislative Decree No. 74 of 10 March 2000, which punishes with imprisonment from two to five years anyone who, with the aim of evading taxes, omits to file the required declaration when the evaded tax exceeds EUR 50,000 for each individual tax.

The quantitative threshold does not constitute a mere sanctioning parameter, but a constitutive element of the offence, whose actual fulfilment must be the subject of rigorous technical-accounting assessment.

The offences provided by Article 5 of Legislative Decree 74/2000

Article 5 of Legislative Decree 74/2000 contemplates two distinct cases of omitted declaration.

The first concerns the omitted filing of the annual income tax or VAT return, when the evaded tax, with reference to each individual tax, exceeds the threshold of EUR 50,000.

The second concerns the omitted filing of the withholding agent's declaration (model 770), when the amount of undeclared withholdings exceeds the same quantitative limit.

In both cases, the EUR 50,000 threshold constitutes a constitutive element of the offence and not a mere condition of punishability, requiring a precise and technically founded assessment of the tax actually evaded.

Late declaration: the ninety-day deadline

For the purposes of establishing the offence of omitted declaration, a declaration filed within ninety days of the expiry of the ordinary deadline is not considered omitted.

The ninety-day deadline does not constitute a ground for non-punishability, but represents an additional term granted to the taxpayer to fulfil the declaration obligation. Only upon the expiry of this period does the typicality of the omissive conduct become consolidated.

It follows that the moment of consummation of the offence falls on the expiry of the ninetieth day following the ordinary filing deadline, with the limitation period running from that date.

The correct identification of the dies a quo is of strategic importance both for the computation of limitation periods and for the reconstruction of the factual sequence under challenge.

The subjective element: specific intent of evasion

The configurability of the offence of omitted declaration presupposes the specific intent of evasion, consisting in the will to avoid paying the tax due by failing to file the declaration.

The mere omission of the declaration duty or the simple non-payment of the tax is not sufficient. It is necessary to ascertain that the omission was consciously premeditated to achieve an undue tax saving.

The case law of the Court of Cassation has consistently clarified that intent cannot be presumed in re ipsa from the omission alone or from the amount of unpaid tax, but must emerge from a coherent body of evidence, based on objective elements and capable of demonstrating the evasive purpose of the conduct.

The assessment of the subjective element therefore constitutes a central node of the defence strategy, requiring a concrete evaluation of the context in which the omission matured and of the circumstances that may exclude premeditation towards evasion.

Reliance on the accountant and liability of the legal representative

The obligation to file the tax declaration is personal and non-delegable. Any assignment of the task to an accountant or tax consultant does not transfer the ownership of the declaration obligation, which remains with the person required by law to sign and file the document.

The offence of omitted declaration is classified as a true omissive offence: the legal representative of the entity or the individual entrepreneur is liable as the direct author of the omissive conduct, being the addressee of the legal obligation to file.

However, reliance on a professional may be relevant to the subjective element. In particular, it may affect the proof of specific intent of evasion, should it emerge that the omission was not premeditated to avoid tax, but resulted from error, organisational dysfunction or non-performance by the appointed professional.

The assessment of actual awareness and evasive intent therefore requires a concrete examination of the manner in which the assignment was made, the degree of control exercised and the overall behaviour of the obligated party.

Grounds for non-punishability and deflation instruments

Article 13 of Legislative Decree 74/2000 provides a ground for non-punishability applicable also to the offence of omitted declaration, subject to the timely regularisation of the tax position.

In particular, the offence is not punishable when:

• the omitted declaration is filed within the deadline for the declaration relating to the following tax period;
• the tax debt, including tax, penalties and interest, is fully extinguished before the author has had formal knowledge of inspections, audits, verifications or the commencement of assessment activities or criminal proceedings.

The provision attributes significance to timely remedial conduct, as an indicator of the absence of social dangerousness and of cooperative intent.

Should full payment occur subsequently, but before the closure of the first-instance trial, the mitigating circumstance provided by Article 13-bis applies, with a reduction in the sentence and possible suspension of proceedings in case of instalment payments.

The timely assessment of access to such instruments constitutes a fundamental strategic node, directly affecting punishability, the sanctioning treatment and the overall outcome of the proceedings.

Relationship with other tax offences

The offence of omitted declaration may concur with other offences provided by Legislative Decree 74/2000, where the respective objective and subjective requirements are met.

In particular, the following may be relevant:

• the omitted payment of VAT (Article 10-ter), which presupposes the filing of the declaration and the non-payment of the tax resulting therefrom;
• the omitted payment of certified withholdings (Article 10-bis), with reference to withholding agents who fail to pay the withholdings made;
• the cases of use or issuance of invoices for non-existent transactions, where the omissive conduct falls within a broader declaratory context characterised by elements of fraud.

The correct legal qualification of the facts is of central importance in the defence strategy, as it affects the configurability of the concurrence of offences, the determination of the sanctioning treatment and the identification of any applicable grounds for non-punishability.

In tax criminal law, the distinction between declaratory omission, payment omission and fraudulent conduct is not merely formal, but constitutes the prerequisite for a technically sound and coherent defence.

The defence strategy

The defence in proceedings for omitted declaration requires a technical and systematic approach, based on an analytical reconstruction of the tax position and on a precise examination of the objective and subjective requirements of the offence.

In particular, the defence activity is structured as follows:

• in verifying the actual existence of the declaration obligation on the investigated person;
• in the technical-accounting reconstruction of the tax actually evaded, according to the regulatory determination criteria;
• in challenging the exceeding of the punishability threshold as a constitutive element of the offence;
• in ascertaining the absence of specific intent of evasion;
• in assessing access to regularisation instruments and to the grounds for non-punishability provided by the legal system;
• in coordinating criminal proceedings and tax litigation, in order to ensure coherence and solidity of the defence approach.

In the Milanese economic context – characterised by high corporate complexity and frequent operations of international significance – proceedings for omitted declaration require highly specialised assistance in tax criminal law.

The intervention of a lawyer from the Legal Aid – Società tra Avvocati S.r.l. team, operating in Milan in the field of tax offences, is aimed at protecting the entrepreneur and the director through a rigorous legal qualification of the facts and an in-depth verification of the evidentiary sustainability of the prosecution framework.

In tax criminal law, the mere omission of the declaration duty does not automatically equate to criminally relevant evasion: liability must be ascertained in a precise and rigorous manner, in compliance with the principles of typicality and culpability required by the relevant criminal provisions.