13 Jun tax fraud and money laundering

In the Italian penal system, the relationship between tax fraud and money laundering constitutes one of the topics of greatest interest for doctrine and jurisprudence in recent years, especially in light of the evolution of economic crime and the progressive strengthening of the tools to combat the conduct of concealment of illicit assets. If traditionally tax criminal law and economic criminal law represented autonomous sectors, the legislator has progressively favored their integration, recognizing that the proceeds deriving from serious tax crimes can fuel money laundering and reinvestment phenomena in the legal economy, with distorting effects on competition and the correct functioning of the market. The reference regulatory framework is represented, on one side, dal D.Lgs. n. 74 of the 2000, which regulates the main tax crimes, e, on the other, by articles 648-bis, 648-Tue, 648-ter.1 and 648-quater of the penal code, dedicated respectively to money laundering crimes, use of money, assets or usefulness of illegal origin, self-laundering and confiscation. The connection between these provisions has acquired particular importance especially after law no. 186 of the 2014, which introduced the crime of self-laundering, going beyond what the doctrine defined as traditional “privilege of the self-launderer”, i.e. the impossibility of punishing the perpetrator of the predicate crime for subsequent activities of concealment or reuse of illicit proceeds. Before this reform, indeed, the reserve clause contained in articles 648-bis and 648-ter of the criminal code. it excluded the punishment of anyone who participated in the crime from which the subsequently laundered goods derived, with the consequence that the perpetrator of the tax fraud could be prosecuted exclusively for the tax crime, except for the configurability of further autonomous cases. The law of 2014 has profoundly changed this structure, introducing article 648-ter.1 c.p., who punishes whom, having committed or contributed to committing a non-negligent crime, employs, replaces or transfers the money, the goods or other benefits deriving from the commission of the predicate crime in economic activities, financial, entrepreneurial or speculative, in order to concretely hinder the identification of their criminal origin. The legislative choice has found broad consensus in doctrine, which identified in the new case the need to protect not only the heritage, but above all the economic order and transparency of the market, increasingly central legal assets in modern criminal politics. In parallel, part of the doctrine has highlighted the risk of an excessive extension of the area of ​​criminal relevance, especially with regard to the distinction between simple personal enjoyment of the proceeds of crime, expressly excluded from punishment, and activities concretely suitable for hindering the ascertainment of the illicit origin of the goods. On the level of tax crimes, cases of fraudulent declaration through the use of invoices or other documents for non-existent transactions assume particular importance, fraudulent declaration by other means, issuing invoices for non-existent operations, concealment or destruction of accounting documents, fraudulent evasion of tax payments and undue compensation, all potentially suitable for generating proceeds susceptible to subsequent recycling or self-laundering. The jurisprudence of the Court of Cassation has progressively consolidated the orientation according to which tax crimes can also integrate the predicate crime of the cases of money laundering and self-laundering, provided that the constitutive elements required by law are present and the criminal origin of the economic benefits is ascertained. A particularly debated aspect concerns the notion of profit in tax crime. According to the prevailing orientation, the tax saving deriving from the commission of the crime constitutes an economically assessable utility and can represent the asset subject to subsequent money laundering or self-laundering operations, provided that it is concretely identifiable and linkable to the original criminal conduct. In this context, the Supreme Court has stated that a sophisticated activity is not required “washing” of money, any operation concretely suitable to make it more difficult to identify the criminal origin of the sums or assets involved is sufficient. The element of concrete dissimulatory suitability today represents one of the main interpretative criteria adopted by jurisprudence to distinguish criminally relevant conduct from mere ordinary asset management activities.. Particular attention was also paid to the cause of non-punishment provided for by article 648-ter.1 of the criminal code., relating to the mere use or personal enjoyment of the assets resulting from the predicate crime. Doctrine and jurisprudence agree that this provision cannot be interpreted extensively, since the repressive purpose of the law would lose its effectiveness, but must be limited to cases in which the asset is simply consumed or used without any purpose of reinvestment or concealment. Consequentially, the transfer of sums to foreign accounts, investment in companies, the purchase of company shares, the establishment of trusts or other financial instruments, as well as the interposition of fictitious subjects, they can constitute the crime of self-laundering if they are concretely aimed at hindering the identification of the illicit origin of the resources used. A further important aspect concerns the system of capital measures. Alongside criminal sanctions, the legislator has foreseen particularly incisive forms of seizure and confiscation, governed by article 648-quater of the criminal code., which allow the mandatory ablation of the profit or product of money laundering and self-laundering crimes, as well as, in case of impossibility, confiscation by equivalent. These tools complement the similar measures provided for in criminal tax law, strengthening the effectiveness of the repressive action and pursuing the objective of depriving the perpetrator of the economic advantage obtained through the illicit activity. On a systematic level, the most recent doctrine highlights how money laundering and self-laundering have taken on a distinctly multi-offensive nature, protecting not only the heritage and the administration of justice, but also the economic order, market transparency and free competition. This approach has also been progressively implemented by the jurisprudence of legitimacy, which enhanced the preventive function of anti-money laundering regulations as a tool to combat organized economic crime and the infiltration of illicit capital into the national productive fabric. In this perspective, the relationship between tax fraud and money laundering represents one of the most dynamic areas of economic criminal law today, characterized by constant regulatory and interpretative evolution, in which not only the provisions of the penal code and tax law play a central role, but also the anti-money laundering regulations referred to in the Legislative Decree. n. 231 of the 2007, the obligations of adequate verification and reporting of suspicious transactions, as well as the principles developed at European and international level regarding the prevention and combating of illicit financial flows. The trend of the Italian legal system appears clearly oriented towards a progressive integration of criminal repression, administrative prevention and tools for property aggression, according to a model that aims not only to sanction individual fiscal or financial offences, but above all to prevent the proceeds deriving from criminal activities from being permanently reinserted into the legal economic circuit, altering the principles of transparency, correctness and loyal competition which constitute the foundation of the market economy.