Omitted VAT & Withholding Payment

Omitted Payment of VAT and Certified Withholding Taxes

The omitted payment of VAT and certified withholding taxes concerns the failure to pay taxes already declared and formally resulting from the annual VAT return or the withholding agent's declaration, as well as from the certifications issued to the recipients.

Unlike declaratory offences – such as fraudulent declaration, unfaithful declaration or omitted declaration – the charge does not concern the mendacious representation of the tax base, but the failure to fulfil a tax debt already determined and "crystallised" in declaratory acts.

The regulation is contained in Articles 10-bis and 10-ter of Legislative Decree 74/2000 and has assumed central importance in corporate tax criminal law, also in light of the amendments introduced by Legislative Decree 87/2024, which significantly affect the configurability of the offence, the thresholds of criminal relevance and defence strategies.

In the entrepreneurial context, such offences are often situated at the intersection of liquidity management, financial planning and criminal liability, requiring a rigorous technical assessment both from an objective and subjective perspective.

Omitted payment of certified withholding taxes

Art. 10-bis Legislative Decree 74/2000

It is criminally relevant when the withholding taxes resulting from the certifications issued to the substituted persons are not paid by 31 December of the year following the filing of the withholding agent's declaration (Form 770), where the unpaid amount exceeds:

• EUR 150,000 for each tax period;
• EUR 50,000 in case of forfeiture of the instalment benefit, with reference to the residual debt.

The threshold constitutes a constitutive element of the offence and requires a precise assessment of the amount actually unpaid.

From an evidentiary perspective, the configurability of the offence presupposes the actual existence and issuance of the certifications attesting the withholdings made. The demonstration of issuance to the substituted persons represents a decisive technical node in the accusatory reconstruction and, correspondingly, in the defence strategy.

In corporate tax criminal law, the documentary verification of certifications and the correct attribution of withholdings constitutes a central step in assessing the merits of the charge.

Omitted VAT payment

Art. 10-ter Legislative Decree 74/2000

It is criminally relevant when VAT due on the basis of the annual declaration is not paid by 31 December of the year following the filing, where the unpaid amount exceeds:

• EUR 250,000 for each tax period;
• EUR 75,000 in case of forfeiture of the instalment benefit, with reference to the residual debt.

Also in this case the threshold constitutes a constitutive element of the offence and requires a rigorous technical assessment of the amount actually due and unpaid.

From an objective perspective, the criminally relevant VAT debt is that resulting from the annual declaration, taking into account the periodic payments indicated therein. This underscores the strategic importance of the technical analysis of the declaratory model, the correct attribution of payments and the reconstruction of financial flows, for the purpose of verifying whether the threshold has been exceeded and the sustainability of the charge.

In corporate tax criminal law, the accounting reconstruction of the declared debt represents a central node of the defence, as it directly affects the configurability of the criminal offence.

Defence innovations introduced by Legislative Decree 87/2024

The amendments introduced by Legislative Decree 87/2024 have significantly affected the structure of the omitted payment offences, introducing a decisive criterion for punishability: criminal relevance is now strictly subordinate to the circumstance that the tax debt is not in the process of being extinguished through instalment payments in accordance with current regulations.

In concrete terms, this means that the timely initiation and correct management of an instalment plan can directly affect the configurability of the offence, excluding its punishability until the taxpayer forfeits the benefit.

The forfeiture of the instalment plan therefore assumes central importance: it is only at that point that the amount of the residual debt and its possible attribution to the criminally relevant thresholds – now redetermined at a lower level than the ordinary threshold – must be verified.

In corporate tax criminal law, the management of instalment payments does not constitute a mere administrative fulfilment, but a strategic element that can directly affect the very existence of the criminal offence.

Subjective element and liquidity crisis profiles

The offences of omitted payment of VAT and certified withholding taxes are, as a general rule, characterised by generic intent, consisting of the conscious will not to pay, beyond the thresholds of criminal relevance, the sums resulting from the declarations filed.

In corporate tax criminal law, however, the assessment of the subjective element cannot disregard a concrete analysis of the economic-financial context in which the omission occurred.

The defence frequently focuses on objective and documentary profiles such as:

• the correct identification of deadlines and thresholds;
• the existence of partial payments or ongoing instalment plans;
• the reconstruction of the company's liquidity situation;
• the demonstration of non-attributable causes that have decisively affected the ability to comply.

Particular rigour is required with reference to certified withholding taxes, as these are sums already withheld on behalf of the Treasury. In such cases, the legal system requires a high level of diligence in financial management and the allocation of resources.

The verification of the real collectability of credits, the presence of supervening non-attributable events and the concrete possibility of sourcing liquidity therefore constitutes one of the main defence nodes in proceedings for omitted payment.

Grounds for non-punishability and debt regularisation

The legal system attributes central importance to reparatory conduct in the offences of omitted payment of VAT and certified withholding taxes.

The full payment of the tax debt – including tax, penalties and interest – within the procedurally relevant moments may determine the exclusion of punishability or significantly affect the sanctioning treatment.

Likewise, the presence of a regularly ongoing instalment plan and the timely regularisation of the tax position represent, in numerous cases, a decisive element for the configurability of the offence and its possible extinction.

In corporate tax criminal law, the technical management of the debt and the correct documentary representation of the tax position assume primary strategic importance. Timely defence intervention enables the assessment of conditions for accessing grounds for non-punishability and the establishment of a coherent line between the criminal profile and tax law.

Legal Aid's defence strategy in Milan

In the Milanese economic context – characterised by complex corporate structures, intricate financial flows and high-intensity tax management models – proceedings for omitted VAT payment or certified withholding taxes require highly specialised legal assistance in tax criminal law, capable of integrating criminal, tax and corporate expertise into a single structured defence strategy.

The intervention of a lawyer from the Legal Aid team – Società tra Avvocati S.r.l., based in Milan with exclusive competence in corporate criminal law, is founded on an in-depth technical-legal analysis of the tax position and a rigorous scrutiny of the evidentiary sustainability of the accusatory framework, in compliance with the principles of typicality, legality and culpability.

In particular, the defence activity is oriented towards:

• correctly reconstructing the tax debt in terms of amounts, thresholds and relevant tax years;
• assessing the instalment plan position and the effects of the most recent regulatory changes;
• scrutinising the evidentiary prerequisites (declarations, certifications, payments, accounting documentation);
• establishing a coordinated strategy between criminal proceedings, tax profiles and, where necessary, insolvency proceedings.

In corporate tax criminal law, the dividing line between criminal liability and non-punishability is rooted in a rigorous technical-accounting assessment, the precise identification of relevant terms and the correct legal qualification of the conduct.

It is in this area, characterised by high regulatory and evidentiary complexity, that the firm's specialist intervention is situated, oriented towards a systematic verification of the sustainability of the accusatory framework and the effective protection of the entrepreneur.