15 Nov confiscation by equivalent in tax offenses

Confiscation by equivalent in tax crimes represents one of the most complex ablative measures in the Italian criminal system: provided for by art. 12-bis of Legislative Decree. 74/2000, allows the State to attack assets with a value corresponding to the profit or price of the crime when these benefits are no longer directly available. Its application focus revolves around the concept of "profit", which in tax crimes does not automatically coincide with the tax evaded, but it represents the actual economic advantage deriving from the illicit conduct, understood as tax savings or patrimonial utility related to tax evasion. This profit must be reconstructed taking into account the economic reality of the operation, through accounting analysis, circumstantial assessments and substitute checks of the taxpayer's active and passive elements: This phase represents one of the most delicate passages, since it is necessary to strictly distinguish between sums generated by the crime and pre-existing lawful assets, avoiding overlaps that would lead to the application of an excessive or disproportionate measure. On a precautionary level, preventive seizure by equivalent requires not only serious indications of guilt, but also the demonstration of the necessity of the measure, for example the impossibility of directly identifying the profit from the crime: this allows the judge to attack assets of any nature as long as they are attributable to the availability of the suspect.
Jurisprudence, over the years, contributed to defining the boundaries of the institute, clarifying that benefits deriving from tax credits not due or not used can also be subject to ablation and that, in the competition of people, each competitor can be held accountable for the entire profit, regardless of the material availability of the sum. However, significant limits have been placed: eg, the substantial nature of the confiscation of value prevents its retroactive application to facts committed before the introduction of the special regulation, just as it is not possible to apply ablative measures when the crime is extinguished by statute of limitations in the absence of a specific regulatory provision in force at the time of the crime. A further area of ​​complexity concerns the relationship between confiscation and insolvency proceedings: when a person under investigation or trial is involved in a bankruptcy or other collective enforcement procedure, a balance must be found between the public interest in eliminating illicit profit and the protection of creditors, preventing confiscation from altering the order of pre-emptions. The nature of the measure is also discussed in doctrine, oscillating between a restorative function - as it recovers the economic advantage taken from the treasury - and a sanctioning function, considering that it can affect assets that do not originate from the crime. Criticisms have been raised regarding the risk of automatism or an excessive extension of the concept of profit, with the consequence of transforming the confiscation by equivalent into a financial burden that is not always proportionate to the conduct.
Despite the interpretative tensions, the institute remains a central tool to guarantee the effectiveness of the punitive tax system: However, its application requires detailed assessment, precise reasons and rigorous compliance with the principles of proportionality, mandatory nature and protection of extraneous third parties. It is therefore essential for professionals and legal practitioners to delve into the most recent jurisprudence, prepare technical defenses based on the correct quantification of the profit and contest any undue extensions of the ablative constraint, especially when the relationship between the affected assets and the actual economic availability of the perpetrator is not proven.