25 Jul statute of limitations in tax crimes

The regulation of limitation in tax crimes constitutes one of the most important institutions in the field of economic criminal law, since it represents the point of balance between the State's interest in repressing tax evasion conduct and the principle of reasonable duration of the process enshrined in art.. 111 the Constitution. The tax crimes regulated by the Legislative Decree. 10 March 2000, n. 74 they are subjects, except for specific exceptions, to the general rules contained in the articles. 157 e ss. the Penal Code, according to which the crime is extinguished after a period of time corresponding to the maximum penalty established by law e, However, not less than six years for crimes. However, the legislator has intervened on the matter several times with the aim of preventing the particular complexity of economic-financial investigations and criminal tax proceedings from determining the early extinction of the crimes before the definition of the judgment. In this perspective, art. 17, comma 1-times, del D.Lgs. n. 74 of the 2000, introduced by the Legislative Decree. n. 138 of the 2011, converted into L. n. 148 of the 2011, which provides for the increase of one third of the limitation periods for the crimes envisaged by the articles. and 2 a 10 of the decree, with the exclusion of cases of failure to pay certified withholdings, failure to pay VAT, undue compensation and fraudulent evasion of tax payments, for which the ordinary terms provided for by the penal code continue to apply. This regulatory provision is part of a broader context of strengthening the criminal protection of tax interests, aimed at combating particularly insidious tax evasion phenomena by extending the time needed for judicial assessment. The prescription system, Furthermore, continues to be governed by the code rules concerning the suspension and interruption of the prescription, with the consequence that the acts indicated by the articles. 159 e 160 c.p. respectively determine the suspension of the running of the term or its interruption, starting a new term within the maximum limits established by the art. 161 c.p. Legitimacy jurisprudence has repeatedly reiterated that the increase of one third envisaged by the art. 17 del D.Lgs. n. 74 of the 2000 operates automatically and must already be considered in determining the ordinary limitation period, which is subsequently affected by any suspensive or interruptive events provided for by the penal code. The identification of the moment of consummation of the individual incriminating cases is also particularly relevant, from which the limitation period begins. The Court of Cassation has developed a consolidated orientation according to which, in declaratory crimes, the consumption coincides with the presentation of the tax return containing the fraudulent or unfaithful elements, while in the crime of failure to declare the consummatory moment coincides with the expiry of the ninety-day period following the deadline set for the presentation of the declaration, since it is a term that integrates the constitutive element of the case and not a cause of non-punishability. Likewise, in the crimes of issuing invoices or other documents for non-existent operations, the Supreme Court has clarified that the crime is perfected with the issuing of a single invoice or, if there are multiple issues in the same tax period, with the issue of the last fiscally relevant document, the moment from which the limitation period begins. The legislation concerning the crime of concealment or destruction of accounting records is different, classified as a permanent crime until the cessation of the conduct preventing the assessment, resulting in the limitation period starting from the termination of the stay. On a systematic level, the doctrine highlights how the legislator has progressively reduced the deflationary function of the statute of limitations in tax crimes, instead enhancing its role as a temporal limit to the exercise of the State's punitive claim, in a sector characterized by technically complex investigations, complex tax assessments and frequent interactions between administrative proceedings and criminal proceedings. The regulatory evolution following the reform introduced by Law also fits into this perspective. n. 3 of the 2019 and the interventions of the Cartabia reform, which have profoundly changed the relationship between substantial prescription and procedural inadmissibility, without, however, altering the special regime provided for the calculation of the limitation periods for tax crimes, which continue to be regulated by the code discipline integrated by the special provisions contained in the Legislative Decree. n. 74 of the 2000. The jurisprudential elaboration has also specified that the assessment of the limitation period must be carried out taking into account the regulations in force at the time of the commission of the act, in compliance with the principle of legality and the prohibition of retroactivity of the most unfavorable criminal law enshrined in the art. 25, comma 2, of the Constitution and art. 2 c.p., with the consequence that the legislative changes affecting the duration of the limitation periods apply exclusively to facts committed after their entry into force, unless they are more favorable to the accused. The Court of Cassation also clarified that, in the presence of a cause that extinguishes the crime by statute of limitations, the judge is in any case required to pronounce an acquittal sentence on the merits if the non-existence of the fact clearly emerges, the defendant's failure to commit the act or its criminal irrelevance, in application of the art. 129 c.p.p., principle which also takes on particular relevance in proceedings for tax crimes, often characterized by complex evidentiary issues and a close interaction between tax assessments and criminal assessments. From the point of view of criminal policy, the current legislation highlights the legislator's desire to prevent the complexity of economic-financial investigations from translating into a substantial emptying of the criminal protection of fiscal interest, pursuing a balance between the effectiveness of the repression of the most serious forms of tax evasion and the guarantees of liberal criminal law. The prescription, therefore, it does not only represent a cause for the extinction of the crime, but it constitutes an essential instrument of guarantee which requires the judicial authority to promptly carry out criminal action, while ensuring compliance with the principles of legal certainty, proportionality of the sanctioning response and reasonable duration of the process, principles that also find full application in the field of criminal tax law, sector in which the constant regulatory evolution and the intense development of legitimacy jurisprudence continue to outline a system increasingly oriented towards effective protection of tax interests, without renouncing the fundamental guarantee values ​​of the Italian constitutional system.