02 May non-payment of VAT

Failure to pay VAT constitutes one of the most relevant cases in the context of Italian criminal tax law and is governed by art.. 10-ter del D.Lgs. 10 March 2000, n. 74, rule that punishes anyone who does not pay with imprisonment from six months to two years, within the deadline set for payment of the tax, the VAT due based on the annual declaration, if the unpaid amount exceeds the threshold of 250.000 euro for each tax period; it is a proper crime of omission, configurable exclusively by the person obliged to pay, which is characterized by being a case of mere conduct and of an instantaneous nature, as it is consumed when the deadline for fulfillment expires, identified, according to the consolidated orientation of the jurisprudence of legitimacy, In the 31 December of the year following the year in which the annual return is submitted, with consequent relevance of this moment both for the purposes of starting the limitation period and for the purposes of identifying territorial jurisdiction; from an objective point of view, the crime presupposes the existence of a certain VAT debt, liquid and payable, resulting from the declaration submitted by the taxpayer, who, having already expressed their debt position towards the treasury, subsequently omits the payment due, while from a subjective point of view general intent is sufficient, consisting of the conscience and desire not to fulfill the tax obligation, without requiring specific evasive intent, with the consequence that the mere awareness of the existence of the debt and the expiry of the payment term integrates the psychological element required by the law; the punishability threshold, raised by the legislator over time up to the current limit of 250.000 euro, carries out a selective function aimed at limiting criminal intervention to the most serious conduct, leaving minor cases within the scope of the administrative sanction, from a perspective of proportionality and deflation of the penal system; the discipline has undergone significant evolution over the years, also due to the changes introduced by the Legislative Decree. 158/2015 e, more recently, dal D.Lgs. 87/2024, which have strengthened the importance of tax debt regularization tools, attributing particular importance to the installment and full payment of the tax due, so much so, according to the most recent orientation of the Court of Cassation, the presence of an installment plan validly granted and regularly respected can affect the very configurability of the crime, excluding its typical nature as the criminally relevant breach no longer exists, while paying the debt, also through deflationary institutions such as voluntary repentance or compliance with the acts of the financial administration, may determine the application of non-punishment or mitigating circumstances, highlighting how the system increasingly tends to favor the recovery of tax credits over mere criminal repression; takes on particular importance, Furthermore, the issue of the company's liquidity crisis, frequently invoked in proceedings for failure to pay VAT, with respect to which the jurisprudence of legitimacy has clarified that it is not in itself capable of excluding criminal liability, unless the taxpayer demonstrates the absolute impossibility of complying despite the adoption of all reasonably necessary measures to find the necessary resources, in the absence of a conscious choice to allocate the financial resources to other purposes, in violation of the payment obligation; the case is part of a broader system of criminal protection of the tax relationship which, alongside declaratory offences, also includes cases of failure to pay withholding taxes and undue compensation, marking the transition from a concept centered on the truthfulness of the declaration to a broader attention to the enforcement phase of the tax obligation, with the aim of guaranteeing not only the formal correctness of the obligations, but also the actual collection of the tax; in this context, the crime of failure to pay VAT takes on a strategic function of safeguarding tax revenue and combating phenomena of illicit self-financing of companies through the use of sums owed to the treasury, while recent reforms highlight a progressive balance between punitive needs and favors for compliance, orienting the interpreter towards a reading of the rule that takes into account not only the non-compliance itself, but also the overall behavior of the taxpayer, of its economic capacity and of the initiatives undertaken to regularize its fiscal position.