Unfaithful Declaration

Unfaithful Declaration

The unfaithful declaration constitutes an intermediate offence within the system of tax crimes, positioned between fraudulent hypotheses – characterised by the use of artifices or false documentation – and mere administrative irregularities lacking criminal relevance.

The offence is governed by Art. 4 of Legislative Decree No. 74 of 10 March 2000, which punishes anyone who, with the aim of evading income or value added taxes, indicates in the annual return active items for an amount lower than the actual amount or fictitious deductible items, provided that the punishability thresholds established by law are jointly exceeded.

The criminal wrongfulness does not coincide with every deviation from the tax authorities' reconstruction, nor with a mere interpretative divergence regarding the fiscal characterisation of costs or revenues.

For the offence to be established, the following are required:

• the exceeding of the criminal relevance thresholds, as constitutive elements of the offence;
• the existence of specific intent to evade, to be ascertained rigorously and not presumptively.

The distinction between an evaluative error and criminally relevant conduct therefore represents a central juncture in the defence approach.

The subsidiarity clause

Art. 4 of Legislative Decree 74/2000 opens with the formula "outside the cases provided for by articles 2 and 3", clearly expressing the residual character of the unfaithful declaration compared to fraudulent declaration offences.

The provision applies only in the absence of conduct characterised by artifices or the use of qualified false documentation. Where the declaration results from the use of invoices for non-existent transactions or other fraudulent means, the conduct falls within the scope of the more serious offences under Arts. 2 and 3, regardless of whether the punishability thresholds specific to the unfaithful declaration are exceeded.

The subsidiarity clause therefore operates as a systematic criterion for delimiting the area of criminal relevance, requiring a rigorous legal qualification of the declarative conduct.

Punishability thresholds

The establishment of the offence of unfaithful declaration presupposes the joint exceeding of two criminal relevance thresholds.

Firstly, the tax evaded must exceed, with reference to each individual tax, the threshold currently set at EUR 100,000.

Secondly, the total amount of active items withheld from taxation – including through the indication of fictitious deductible items – must exceed 10% of the declared active items or, in any case, exceed EUR 2,000,000.

These thresholds constitute constitutive elements of the offence and not mere external prerequisites for punishability: their actual fulfilment must be the subject of precise and rigorous demonstration, both quantitatively and methodologically, with specific indication of the calculation criteria adopted.

Grounds for non-punishability

The regulation of the unfaithful declaration provides for specific exclusions from criminal relevance, aimed at limiting the scope of sanctioning intervention to cases characterised by actual harmfulness.

The following do not assume criminal relevance:

• divergences attributable to the incorrect classification or valuation of objectively existing items, where the criteria adopted are nonetheless indicated in the financial statements or other fiscally relevant documentation;
• valuations which, considered as a whole, differ by less than 10% from the correct ones.

The provision therefore excludes punishability in the presence of physiological evaluative deviations or interpretative errors not characterised by artificiality.

The distinction between an evaluative error and the indication of fictitious deductible items therefore assumes central relevance in the defence strategy, requiring a rigorous technical-accounting reconstruction of the declarative items and the criteria adopted.

The subjective element

The establishment of the offence of unfaithful declaration presupposes the specific intent to evade, consisting in the conscious will to indicate in the declaration active items lower than the actual ones or fictitious deductible items in order to unduly reduce the tax burden.

A mere declarative inaccuracy or an interpretative divergence on the fiscal characterisation of accounting items is not sufficient. It is necessary to ascertain that the conduct is supported by the purpose of achieving an unentitled tax saving.

The intent cannot be presumed in re ipsa from the mere existence of quantitative deviations from the tax authorities' reconstruction, but must emerge from a coherent, structured body of evidence capable of withstanding the beyond reasonable doubt standard.

The assessment of the subjective element therefore constitutes a central juncture of the defence strategy, requiring an ex ante evaluation of the decision-making context and the information available at the time of filing the declaration.

Nature of the offence and moment of consummation

The unfaithful declaration constitutes a result crime, whose completion coincides with the filing of the annual return containing the indication of active items lower than the actual ones or fictitious deductible items, provided that the punishability thresholds established by law are exceeded.

The consummation of the offence is strictly linked to the declarative act: it is at that moment that the criminally relevant harm is realised, consisting in the false indication capable of causing tax evasion.

Consequently, the limitation period runs from the date of filing the declaration, and not from the subsequent tax assessment or notification of the tax notice.

The correct identification of the moment of consummation assumes strategic relevance, both for the purpose of calculating the limitation periods and in reconstructing the factual sequence subject to challenge.

Entity liability under Legislative Decree 231/2001

The administrative liability of the entity under Legislative Decree 231/2001 does not apply generally to the offence of unfaithful declaration, but is provided for only in specific cases characterised by VAT evasion of particular gravity and cross-border dimension.

In particular, Art. 25-quinquiesdecies of Legislative Decree 231/2001 provides for the liability of the entity for the offence under Art. 4 of Legislative Decree 74/2000 exclusively when the VAT evasion forms part of fraudulent systems connected to the territory of at least one other EU Member State and the overall damage is of significant magnitude.

It is therefore an exceptional extension of the entity's liability, limited to contexts of structured tax fraud of a supranational dimension.

The verification of the existence of the entity's interest or advantage and of the organisational structure adopted assumes, in such cases, central relevance in the defence strategy.

The defence strategy

The defence in proceedings for unfaithful declaration requires a rigorous methodological approach, based on the technical-accounting reconstruction of the declarative items and the precise verification of the exceeding of the criminal relevance thresholds.

In particular, the defence activity focuses on:

• on ascertaining the actual extent of the tax evaded and the active items withheld from taxation;
• on the application of the grounds for non-punishability provided for by Art. 4, paragraphs 1-bis and 1-ter;
• on challenging the specific intent to evade;
• on the coordination between the criminal proceedings and the tax dispute, in order to ensure coherence and solidity of the defence line.

In the Lombard economic context – characterised by high corporate complexity and frequent operations of international significance – such proceedings require technically qualified and timely defence.

The intervention of a lawyer from the Legal Aid – Società tra Avvocati S.r.l. team fits into this perspective: specialist assistance in tax criminal law oriented towards the correct legal qualification of the contested conduct and the verification of the evidentiary sustainability of the prosecution framework.

In tax criminal law, the distinction between a physiological evaluative divergence and conduct deliberately aimed at evasion does not constitute a mere theoretical exercise, but represents the prerequisite for an effective and structured defence.