Criminal law, German company, national objection of esterovestizione, stable organization in Italy, Directive 2011/16 / EU transposed by the d.Igs. n. 29 of 2014, criminal preventive seizure, Court of Cassation, III Criminal Section, Judgment n. 2407 of 22/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

Appeal against the order of the Court of the MACERATA review on 30/12/2016.

BELIEVED IN FACT

1. By order of 30.12.2016, filed on 30.01.2017, the Court of the review of Macerata confirmed the decree of preventive seizure issued on 11.11.2016 by the GIP / court of Macerata, rejecting the request for re-examination proposed on 22.12.2016 in the interest of … ..

2. To clarify, to improve the comprehensibility of the appeal, that the contested provision followed the issuance by the GIP of a decree of preventive seizure aimed at confiscation, up to the amount of € 8.480.615,37 for the years of tax from 2009 to 2015, concerning money and assets analytically indicated in the minutes of execution in deeds described, in respect of …., investigated the crime of omitted VAT declaration ex art. 5, d. Igs. n. 74 of 2000 in the capacity of sole and legal representative of … …. GMBH.

3. Appealed in favor of the Supreme Court of … …, registered in the special Register pursuant to art. 613 of the Italian Civil Code, proposing five reasons, set out below within the limits strictly necessary for the reasoning pursuant to art. 173 available att. cod. proc. pen.

3.1. Deduce, with the first reason, the defect referred to in art. 606, lett. b), c.p.p., in terms of the violation of articles 11 and 117 of the Constitution, in relation to art. 49, TFEU, of recital n. 4, 5, 7 and 8, reg. n. 904/2010 directly applicable and in recital 2 of Directive 2011/16 / EU as implemented by d. Igs. n. 29 of 4.03.2014 to the art. 2, co2., And in light of art. 5, d. Igs. n. 74 of 2000.

In short, it supports the defense of the appellant that the contested order would be affected by the breach of law for not having activated the international cooperation referred to in Reg. 904/2010 for the collection of VAT; after having recalled recital n. 7 of the aforementioned regulation and its interpretation provided in the GUE judgment of 17.12.2015 in Case C-419/14, first of all argues that the applicant should have requested the German tax information to ascertain in what State the VAT and to have precise knowledge of the type of operating structure that the company administered by the suspect had carried out in Germany; therefore, Member States can not limit themselves to controlling taxpayers for the tax payable in their territory, but in the event of national disputes, they must also request and provide assistance to other States, in order to understand the correct way of application in the imposed in the two States; in the present case this would have occurred, since Italy implicitly denies that Germany does not have the right to receive taxes accrued on profits produced by the company governed by German law; recalling, again, the content of Directive 2011/16 / EU implemented by the d. Igs. n. 29 of 2014 and, in particular, the recital n. 2, after underlining the self-application nature of the directive in question, the breach by the courts of merit is reiterated, since in this case the control of cross-border transactions could not disregard the information made available by Germany; the judges would, on this point, incur a misunderstanding mistakenly referring to the content of the sentence CJUE 17.12.2015 cited where they support the non-obligatory nature of international cooperation, where, in fact, this obligation would result from § 59 of the grounds of the sentence, so that it would not have been possible to challenge the art. 5, d. Igs. n. 74 of 2000, without first shedding light on the legal situation through the use of international cooperation and having verified the events that occurred in Germany and the fiscal situation of the German company; the investigations carried out by the Italian bodies would be evidence of incomplete and illegitimate evidence, being the measure contested “disseminated” of issues related to the lack of official or lack of translation of documents that painstakingly but diligently the defense had produced in the review (communication of the German GdF and request for transfer of the accounting filed abroad with proof that the originals are in Germany, statements made during the defensive investigations by the German accountant of the company … …; deposited accounts for the years 2009/2015); this documentation should have been officially collected by the Italian authorities during the preliminary investigation phase, also in relation to the question of relations between the German company and the company …. of which the former was principal and the second multi-firm agent.

3.2. Deduce, with the second reason, the defect referred to in art. 606, lett. b), c.p.p., in terms of violation of art. 10-bis, co. 13, d. Igs. n. 74 of 2000, of the St. contrib., In conjunction with the art. 17, co. 2, d.p.r. n. 633 of 1972 and in relation to the art. 2 c.p. and to the art. 5, d. Igs. n. 74 of 2000.

In short, it supports the defense of the applicant, after having made a large digression on the distinction between evasion and avoidance / abuse of the law, which the c.d. The overstatement that is challenged by the suspect in the present proceedings would constitute a sort of genus abuse of the right, in this regard recalling what was affirmed not only by the CJEU in some decisions (the appeal … … of 12.09.2006) , but above all by this Court in sentence no. 2869/2013 in the affair … … that would present multiple points of contact with the one in question, as the … .., like the …., Received the challenge, among others, to take advantage of the VAT regime of the intra-community supply in order to highlight a more competitive price compared to competitors; it is argued that, since the German reality was not investigated, the artificiality of the operation (abuse of the right of establishment) would not have been verified in any way; in any case, it is observed, even if this is considered proven, the abuse of law in our legal system would no longer have criminal relevance as a result of the provisions of art. 10 bis St. contrib., Except for the hypothesis of codified circumvention, ie in cases of operations contrasting with specific provisions that pursue anti-avoidant purposes, operations that must be distinguished by a quid pluris in the sense that conduct must have a fraudulent, deceptive, misleading connotation towards the Tax Authority; in the species, the …. it would not have carried out any activity so characterized, but rather it would have been recorded by the suspect in Italy in times not suspicious, obtaining an Italian VAT number and declaring that he is the administrator, resident in Italy, of a company based in Germany; in short, therefore, the hypothesized fact, according to the defense, would not represent an esterovestizione, but only a hypothesis of circumvention or abuse of the uncoded law, falling within the co. 13 of the art. 10 bis cited, without penalties, which is applicable retroactively pursuant to art. 2, c.p .; moreover, it is observed, contrary to what erroneously stated in the order under appeal, the … it would not have applied the mechanism referred to in art. 17, co. 2, d.P.R. n. ‘ 633 of 1972 concerning the c.d. reverse domestic charge, but the art. 41, co. 1, lett. a), d.l. n. 331 of 1993 concerning non-taxable intra-Community supplies; the operations of the … .. GMBH, therefore, would have been regularly subjected to VAT on the basis of the rules established by the aforesaid d.I., so that the judge of the review would have erroneously applied the art. 10 bis, co. 12 St. contrib., In conjunction with art. 17, d.P.R. n. 633 of 1972, in the inapplicable species.

3.3. Deduce, with the third reason, the defect referred to in art. 606, lett. b), c.p.p., in terms of violation of art. 321 c.p.p. and of the articles 240 p.p. and 322 ter c.p. and of the art. 1, co. 143, law n. 244 of 2007. In short, it supports the defense of the appellant that the judges of the review would not have taken into account the principles established by the ruling …. of the U.S. penalties of this Court, about the limits of the sequestration by equivalent of the assets of the legal entity for tax offenses committed by the legal representative; in particular, it is argued that, since the already mentioned international cooperation has been lacking, there is no proof of the absolute fictions of the legal person, a condition for the sequestration imposed by the sentence …

3.4. Deduce, with the fourth reason, the defect referred to in art. 606, lett. b), c.p.p., in terms of violation of art. 4, d.p.r. n. 633 of 1972, erroneously referred to. In short, the defense of the appellant maintains that the reference to the aforementioned rule, which does not provide for the criteria for identifying residence in t.n. of the taxable person (defined by the law in question and by the subsequent article 5), as instead provided for II.DD. art. 73, TUIR; in this case the art. 4 could not be recalled because the goods came from Austria, a circumstantial circumstance.

.5. Deduce, with the fifth reason, the defect referred to in art. 606, lett. b), c.p.p., in terms of the violation of articles 43 c.p. and 5, d. Igs. n. 74 of 2000, for lack of fraud in relation to the alleged esterovestizione integrated octu oculi, and for failure to examine by judges of the review of the psychological element within the fumus delicti.

In summary, the appellant’s defense maintains that the review judges would have examined only partially the elements in the proceedings, without considering the defensive ones proving the existence of a project of life and residence in Germany of the suspect, where it is considered that the activity had already existed for 25 years and had never had any problems, what made the lack of malice “evident” and the impossibility of setting up the will to sell at competitive prices without paying VAT; he would have paid the taxes in Germany from 1993 to 2015 so that it would not be possible to explain why in 2009 he should have suspected that the activity hinged in Germany was illegitimate; in the absence of a specific fraud, the lack of which was evident, the precautionary measure could not therefore have been arranged.

4. With written notice filed at the chancellery of this Court on 30.05.2017, P.G. at the S.C. of Cassation requested the rejection of the appeal; in particular, observes the PG .:

a) with regard to the first and fourth motives, according to P.G. that from the reconstruction of the proceedings, it was clear that in the present case it was paid in a case of esterovestizione, whence the existence of the tax obligation of …. GMBH, having tax residence abroad, to present in Italy the annual VAT declaration having a stable organization in the State, where the administrative management and planning of all the acts necessary for the achievement of the social purpose took place; b) as regards the second reason, the groundlessness is pointed out, since the hypothesis of mere abuse of the right should be excluded, as the suspect, in addition to having obtained an undue tax advantage, had directly infringed a tax law, namely that of art. 5, d. Igs. n. 74 of 2000; c) with regard to the third and fifth grounds of appeal, it indicates that the precautionary measure had been prepared in relation to art. 5, d. Igs. n. 74 of 2000 with reference to a tax evaded amount qualifying as undoubted asset advantage deriving from the unlawful conduct and qualifying as profit from the crime, without however detecting the question of the existence of the alleged defect of the psychological element, not being such lack of immediate relief as required by the jurisprudence of legitimacy; d) finally, the choice of Fr. to provide for the direct seizure against the institution and for the equivalent against the suspect and the execution of the provision against the partial inability of the company resources, given that the sum seized on the cc / cc headed to … … is equal to € 182,179.05, significantly lower than the profit of the tax offense, assumed at € 8,480,615.37.

5. By an affidavit filed with the Registry of this Court on 18.09.2017, the defense of the appellant encloses the provision adopted pursuant to art. 13, Statute against by the Guarantor of the taxpayer for the Autonomous Province of Trento, with which the behavior of the GdF has been censured not with regard to the existence or otherwise of the esterovestizione, having declared the incompetent Guarantor to decide, as for the timing of its application and in relation incorrect references to VAT legislation and the conditions of its applicability.

CONSIDERED IN LAW

6. Given that filed on 18.09.2017 by the defense of the appellant does not take into account the effects of the present judgment, given that it is the Taxpayer’s Guarantor to specify that he is not competent to rule on the existence or otherwise of the case in question an overshoot, due to the tax courts (and, of course, to the penal one, in the event of a tax offense) to ascertain its configurability, the appeal is unfounded.

7. And indeed, the College notes, in this by sharing what was argued by Fr. G., the appeal brought by the defense of the applicant must be rejected as a whole. As a preliminary point, this Court observes that, in the matter of appeal for cassation brought against real precautionary measures, the art. 325 cod. proc. pen. allows the union of legitimacy only for reasons relating to the violation of the law. The notion of “violation of the law” includes, in particular, the “errores in iudicando” or “in procedendo”, and also the vices of the motivation so radical as to make the argumentative apparatus in support of the provision completely missing or lacking the requisites minimum consistency, completeness and reasonableness, as such apparent and, therefore, unsuitable to make understandable the logical itinerary followed by the judge (Section 6, No. 6589 of 10/01/2013, Rv. 254893; Section 5, n 43068 of 13/10/2009, Rv. 245093). On the other hand, the manifest illogicality of the motivation can not be deduced, which can be denounced in the judgment of legitimacy only through the specific and autonomous reason set out in letter. e) of the art. 606, same code (see for all: Section U, No. 5876 of 28/01/2004, PC … in proc. …, Rv 226710, Section U, No. 25080 of 28/05 / 2003, … .., Rv. 224611). Therefore, outside of the apparent motivation, this court is not allowed any syndicate on motivation.

8. Taking cognitive background into consideration, the appeal solicits the Court a new and different assessment of the same elements in fact already assessed by the Court of Review with regard to the esteem withholding of the company …. GMBH, invoking an alternative and more favorable reading in point of fumus commissi delicti and, in particular, in terms of alleged violations of the law in reality non-existent. The complaints must therefore be rejected in the light of the reasoning by which the Court of the Review held that the fumus existed with an absolutely congruous and certainly not apparent justification.

9. Proceeding in a logical – systematic order, the pattern proposed by Fr. in their written summons. First of all, the first and fourth grounds of appeal can be examined jointly – expected the homogeneity of the underlying grievances – with which the lack of the fumus delicti in relation to the crime referred to in art. 5, d. Igs. n. 74 of 2000, for failure to comply with the mechanism of cooperation on VAT as per reg. n. 904 of 2010 and Directive 2011/16 / EU as implemented in our legal system as well as the erroneous reference to art. 4, TU VAT, with regard to the identification of the residence in t.n) of the taxable person of value added tax. On this point, it must first of all be noted that there are no doubts in the light of the findings of the contested order concerning the configurability of the crime in question.

In this regard, it is noted that the proceeding originated from a VAT tax audit which, moving from the findings made to the company …. of … … s.n.c., invested the … .. GMBH, from which the aforementioned Italian company had purchased goods for over 400,000 euros; the German company, with registered office declared in Germany and a warehouse in Austria, having as its business object the wholesale trade of … .., the suspect who also held 98% of the capital of … srI , exercising the same activity as the German company, but based in … .. Marche; from the investigations carried out to the GdF and from the analysis of the VIES database it emerged that the German company had a sales volume in Italy between 2009 and 2014 of several million euro, which represented 100% of the turnover from 2009 to 2012, approximately 98% of turnover for the years 2013 and 2014 and approximately 94% for 2015; the searches carried out at the headquarters of … s.r.l. and at the private house of the … had led to the discovery of the documentation relating to the period subject to verification and the entire official accounting of … GMBH, together with documents considered significant, that is almost all e-mails referable to the … .. GMBH came from the national territory; telephone and fax numbers were referable indifferently to either company; in Italy, the personal cc / cc of the suspect and other relations in the name of the German company on which the proceeds of sales made in Italy passed; it emerged, therefore, that although it formally has its head office in another EU member country, the … GMBH had its own operational and decision-making center in Italy, the country in which it carried out the main object of its activity coinciding with the …. s.r.I .; consequently, therefore, also for the … GMBH, having tax residence abroad, the obligation to present the annual VAT declaration having “permanent establishment” in Italy, where the administrative management and planning of all the acts necessary for the achievement of the social purpose took place.

10. On this point, the order appealed held that the requirements for configuring the externalization of the company existed, namely that the company had a permanent establishment in Italy, which occurs when the administrative management and scheduling of all the proceedings are carried out in Italy. necessary for the social purpose to be achieved, identifying the evidence of the aforementioned stable organization in the country in the factual elements described above.

Statement consistent with what has already been recognized by this Court with the ruling Sez. 3, n. 29724 of 26/05/2010, P.M. in proc. …, Rv. 248109, where the principle of law has been affirmed that “the obligation to present the annual VAT declaration by a company having tax residence abroad exists if it has a stable organization in Italy”; stable organization in Italy of the company formally residing abroad that must be deduced from relevant factual elements for the purpose of ascertaining the presence in Italy of the headquarters of strategic, industrial and financial decisions (so-called high administration), as well as the most relevant of the administration of the company. In other words, the conduction of the company’s business object in Italy. This finding was carried out by the Court with a justification that was free of any objections and logical and legal faults.

Moreover, if it is true that, in the assessment of the fumus, I commit delicti as a precondition for the preventive seizure referred to in art. 321, paragraph 1, Code of Criminal Procedure, the judge of the review can not have regard only to the abstract configurability of the crime, but must take into account, in a timely and consistent manner, the concrete procedural outcomes and the actual situation emerging from the elements provided by the parties, indicating , albeit briefly, the reasons that make the accusatory approach to the sustainable state (among others, Section 3, No. 26197 of 05/05/2010, RV 247694), on the other hand, the judgment regarding the The real precautionary measure remains correlated with the preliminary investigation phase in which, as is known, the delibation that is performed is different from the full one of the judgment stage.

In the preliminary investigation phase, which includes the incidental phase of the re-examination of the precautionary measure, the judgment that is performed is a judgment of appreciation of the plausible existence of the fact that it can not result in an early decision on the responsibility of the person investigated in order to a crime that is the object of investigation, but must be confined to the check of compatibility between the specific case and the hypothetical legal one, by means of a prior assessment of the criminal inactivity of the fact (for all, Section 2, No. 26457 of 22/06/2005, PM in Proc …, Rv 231959, Section No. 6 of 27/03/1992, Rv. 191327, Section 5, No. 6252 of 19/11/1998, Rv. 212511).

11. As for the issue of non-cooperation between tax authorities on the basis of Reg. n. 904 of 2010, which the appellant raises at the base of the widespread and articulated objection in the first plea, it is sufficient here to recall what the court of re-examination has argued in the contested order, in particular highlighting how the investigation activity carried out by the GdF Italian made the activation of any request with the German body collateral superfluous, not only for reasons of a substantial nature (in Italy, in fact, all the accounting documentation was found at the headquarters of … srI, in addition to the most significant bank documentation and commercial, having to add that the fact that the German company had in Italy the “permanent organization”, as well as on the basis of what has been previously highlighted, has not been denied, as indeed the order clarifies unequivocally, from the document with which – regardless of the circumstance for which it was written in language a German and not Italian – the …. had been authorized to transfer all the accounting to Italy, being present at the headquarters of … s.r.l. also all the bank and commercial correspondence of the company …. GMBH), but also for legal reasons, since it is necessary to consider the reading of the review judges correct as to the absence of a collaborative obligation between tax authorities that, instead, the defense of the suspect would lead to the reading of § 59 of the CJEU judgment of 17.12.2015 in C-419/2014, ……..

And indeed, on this point, the College observes how the aforementioned § 59 states: We must therefore answer the sixteenth question by declaring that Regulation no. 904/2010 must be interpreted as meaning that the tax authority of a Member State which examines the collectability of VAT for services which have already been subject to that tax in other Member States is required to make a request for information to the tax administrations of such other Member States if such a request is useful, if not indispensable, to ascertain that VAT is payable in the first Member State. As made clear by the same (flat) reading of the statement of the CJEU, which does not require any exegetical supplement, this obligation of collaboration (which can be deduced from the verbal form used: “..è estate …”) extrinsecising through the request for information whereas the tax authorities of a Member State must address the tax authority of the EU country in which the legal entity required to pay value added tax is established, is not absolute, but is subject to a condition, since it is “if such a request is useful, if not indispensable, to ascertain that VAT is payable in the first Member State”, which, moreover, still presupposes that the taxable person who is required to pay VAT (in this case , in Italy) has carried out “services which have already been subject to that tax in other Member States” (ie, in this case, in Germany), a circumstance which does not emerge in it is neither the contested provision nor the proposed appeal, since the applicant party – not even assertively – stated that the value added tax on the services performed in the time frame under evaluation had been fulfilled in the country where the company has its registered office.

On light of the foregoing considerations, therefore, the argumentative defenses referred to in the first and fourth grounds of the appeal are lost in argument, given that for the purposes of the objective and realistic examination of the conduct held by the suspect as administrator of … GMM and relationships between the … .. and the …. did not require the acquisition of official documentation from abroad, resulting from the same contested provision that said “official” documentation was found in Italy at the … srI, so there is no need / any to activate that collaboration that, in reality, it was not required precisely for the circumstance, emerging from the deeds for which:

a) in Italy, almost all the turnover related to the sales of … carried out by … …;

b) that in Italy contracts were signed with Italian customers;

c) that in Italy the c / c relationships and the … that of …, accounts on which the proceeds of the sales of … flowed, there was, however, no need to ascertain the existence of foreign cc / cc precisely by virtue of the relationship of congruity between the turnover and the money transited on the accounts;

d) that in Italy the business center of the activity existed (as resulting from the fact that in Italy all the accounting, banking and commercial documentation had been found). Nor, moreover, as pointed out in the order under appeal, does the existence of the agency relationship between … and … have been established, since it was established that the latter did not even have an employee availing oneself of those formally assumed by … to achieve their social purpose. This, as underlined in the contested order, univocally demonstrates the existence of a precise commingling between the two business realities, not even noting the fact that the …. LTD do not operate as a single owner of … GMBH, given that this, as evidenced by the order with logical reasoning, does not in any case undermine the acquired evidential framework, as the Italian company may well carry out activities for other subjects as well as for the …: what emerges however from the ordinance is that the … had no operational structure, making use of that made available to …., referable, as seen, always to … ..

12. Excluding, therefore, the existence of an absolute obligation to request the aforementioned information by defeating the condition – as pointed out by the same sentence mentioned in § 59 of the cited judgment of the CJEU – that “such a request is useful, if not indispensable, to ascertain that VAT is payable in the first Member State “, it must correctly be considered that the courts of merit considered the provisions of art. 4, d.P.R. n. 633 of 1972, which instead), according to what was raised by the defense in the fourth plea, was wrongly referred to. On this point, it is sufficient to recall what has been affirmed by the jurisprudence of this Court in the tax court, where it has been clarified that in the matter of VAT, from the complex of the discipline dictated by the Ministerial Decree. October 26, 1972, n. 633, and, in particular, by the provision contained in art. 17, fourth paragraph, of said decree, it is inferred that, when the objective requirement of the habitual exercise of a commercial activity occurs – required by art. 4 of the same decree – and the territorial one of the stability in Italy of an organization of the non-resident subject, the obligations and rights related to the operations carried out by or towards the permanent establishment can not be fulfilled or exercised, in ordinary ways, by the non-resident , directly or through a tax representative. The permanent establishment in the State, in fact, as it is obliged to pay and to reclaim the tax, in addition to complying with the formal duties of invoicing the active operations and registration of the invoices, constitutes in this case the only center of tax imputation of the operations relating to the non-resident subject and the same is also the only one entitled to submit the annual declaration, in which the tax due or the excess to be deducted in the following year and formulated by the request for reimbursement (Section 5, Judgment No. 6799 of 06/04/2004, Rv 571913, Section 5, Judgment No. 3889 of 15/02/2008, Rv. 602689).

And then, it appears to be absolutely evident that all the transfers carried out by …. Instead of being hypothetical intra-community transactions, GMBH were set up by parties operating in Italy with Italian subjects, and therefore should have been subject to VAT in Italy. Having omitted the relative declaration for the tax periods subject to dispute, it makes clear the configurability of the fumus pursuant to art. 5, d. Igs. n. 74 of 2000, being in Italy, as established, the headquarters of the effective management of the company.

Moreover, this Court has specified that for the purpose of the integration of the crime referred to in art. 5 of Legislative Decree no. 74 of 2000, the obligation to present the annual tax return by a commercial company having its registered office abroad but operating in Italy does not exist only when the headquarters of the effective management of the company is not located in the Italian territory, also expected from the international rules against double taxation (see, lastly: Section 3, No. 26728 of 25/06/2015, Ptt in Proc …, Rv. 264060).

13. Not the best fate deserves the defensive complaint about the applicability, in the present case, of the discipline regarding the abuse of the right – tax avoidance, object of the recent regulatory intervention implemented with the Legislative Decree 128 of 2015 which has, in certain conditions, decriminalized those conducted that previously, due to the formation of a jurisprudence in this sense, had been returned to it.

Believes the College to share what was argued by Fr. and set out in the contested order to refute the second plea, since in fact the non-invokability of the provisions of art. 10-bis, St. contr., In the species with reference to co. 13 invoked by the defense of the suspect. And indeed, on this point, well observe the court of the review where it highlights as according to the co. 12 abusive transactions can only occur when violations of specific tax provisions can not be contested, in which – underlined the contested order – fall also the penal provisions on tax matters: a circumstance that (regardless of the correctness of the reference to art. 17, paragraph 2 of Presidential Decree No. 633 of 1972 which, according to the defense of the suspect, is incorrect because the German company applied Article 41, paragraph 1, letter A), of n. 331 of 1993, being non-taxable intra-community supplies) assumes an absorbing value, excluding that in this case it is possible to speak “simply” of abuse of the non-codified law or of tax avoidance, but of actual overstuffing, with consequent violation of the law criminal tax pursuant to art. 5, d. Igs. n. 4 of 2000. Well, on this point, in fact argues the P.G. where it not only excludes the applicability of art. 10-bis St. contr. (and the consequent retroactive operation pursuant to Article 2 of the Criminal Code, which is in fact peaceful as it has already been the subject of a reiterated jurisprudential affirmation: Section 3, No. 40272 of 01/10/2015 – Dep. 07/10/2015, RV 264951, Section 3, No. 35575 of 29/08/2016, PC in progress … and others, Rv. 267678), just recalling the jurisprudence of this Court according to which in terms of financial violations, the institution of the abuse of the right under Article. 10-bis I. 27 July 2000, n. 212, which, due to the change introduced by art. 1 of Legislative Decree 5 August 2015, n. 128, now excludes the criminal relevance of the conduct attributable to it, has only residual application with respect to the provisions concerning fraudulent behavior, simulators or in any case aimed at creating and using false documentation as per Legislative Decree 10 March 2000, n. 74, so that it is never in relief when the facts in dispute integrate the criminal offenses connoted by these constitutive elements (Section 3, No. 40272 of 01/10/2015 – Dep. 07/10/2015, Rv. 264950) . Correctly, therefore, the P.G. recalls that in the present case the existence of a mere abuse of the criminal law is irrelevant, given that the suspect, in addition to having obtained an undue tax advantage, has violated the penal-tax law directly: the case disputed, remembers the PG, in fact, is that provided for by art. 5, d. Igs. n. 74 of 2000, which in itself punishes the omission of the presentation of the declaration, even regardless of the production of actual economic damage for the A.F.

14. With regard to the third plea, with which the order appealed against for failing to comply with the principles of the ruling … of the SSUUs of this Court, seize the observations made by Fr. and from the contested order. The judges of the review, on the point, highlight how to load …. GMBH the seizure of some cc / cc was carried out, thus submitting a hypothesis of direct confiscation, always possible towards the Entity (Section U, No. 10561 of 30/01/2014 – Dep. 05/03/2014, RV 258647), where, on the other hand, the seizure has been ordered for an equivalent against the suspect, as administrator of the …, in consideration of the fact that the company is bound by the obligation.

On this point, there is no doubt that the principles enunciated by this Court have been respected with the aforementioned sentence of the SSUU …. And indeed, the sequestration of the pertinence of the Entity as a direct confiscation is admitted (see above) ), it is true that in terms of tax offenses committed by the legal representative of a juridical person, the preventive seizure functional to the confiscation by equivalent provided for by articles. 1, paragraph 143, of the I. n. 244 of 2007 and 322 ter cod. pen. can not be disposed on the assets of the entity, except in the case in which it is without autonomy and represents only a screen through which the offender acts as effective owner of the assets (Section U, No. 10561 of 30/01/1) 2014 – Dep. 05/03/2014, Rv. 258646).

But, in the case under examination, as clarified by the same order in the Confittti of the institution was only arranged the direct confiscation of the cc / cc, while the equivalent was ordered against the suspect, as legal representative, being unable as bound towards the company. In fact, it has already been established that the preventive seizure is aimed at the direct confiscation of the profit remaining in the availability of a juridical person, deriving from the tax offense committed by its legal representative, since the entity can not be considered a person unrelated to the said crime; nevertheless, in order to be able to dispose the direct confiscation of the profit towards the legal person, it is still necessary that the availability in the corporate funds of money be assaulted, there is no obligation for the Public Prosecutor to provide for the prior search for liquidity or assets even if “ex actis” results in the inability of the institution’s assets (in which the Court has deemed the seizure by law equivalent to be legitimate, since the deeds revealed a situation of objective illiquidity inferable from authorization to the IGC and approval of the company crisis program: Section 3, No. 6205 of 29/10/2014 – Dep. 11/02/2015, … and more, Rv. 262770). In the present case, precisely the situation of the incapacity of … GMBH with respect to the profit constituted by the amount of tax evaded as a result of the non-declaration of VAT for the disputed periods, legitimized the adoption of the seizure by equivalent on the assets of the investigated, appearing moreover acceptable the correctness of the double prediction of the direct sequestration against the company and for the equivalent of the investigated director of the tax offense, and of the execution of the provision in the face of the partial capacity of the company resources, where it is considered that the sum seized on the cc / cc of … … GMBH was equal to just over € 182,000, compared to a profit deriving from the disputed tax offense amounting to approximately € 8 million and € 500,000.

15. Lastly, as regards the fifth ground of appeal, with which the contested order is criticized for not having excluded the subjective element of the offense, it is equally unfounded. And indeed, it is the same order challenged to clarify the reasons for not accepting the defensive thesis, emphasizing that the specific intent of evasion of taxes on value added is not excluded from the existence of other purposes pursued by those who commit the crime. In this case, the judges of the review point out that, apart from the differences in tax pressure between Italy and Germany, the interest in carrying out a sale at highly competitive prices by an economic entity that makes the purchase and resale of … its own core business, not to mention the circumstance that the VAT would be absolved in any case by the final customer. The VAT, it is underlined, due to its configuration, must necessarily be applied to each transfer made, recurring the legal requirements, otherwise the mechanisms of competition between the various economic operators have been altered, what has been considered more than sufficient, in review, to consider the psychological element of the alleged offense subsistent.

This is an argument free from defects and legally correct, expected as mentioned by Fr. in his indictment and from the defense of the suspect, in the review of the provisions which include real precautionary measures, the judge is asked a summary assessment of the “fumus” of the alleged offense related to all the elements of the disputed case; it follows that the same judge can also detect the defect of the subjective element of the crime, provided that it emerges “ictu oculi” (see, among others: Section 2, No. 18331 of 22/04/2016 – Dep. 03 / 05/2016, … and more, Rv. 266896). However, in the case under examination, this emergence of the defect of the specific malice legally required, as argued in the contested order, did not appear nor does it appear at the stage of the proceedings, precisely because of the unavoidable summary of the deliberation carried out, whence this argument does not in the sign.

16. The appeal must be rejected as a whole.

Source Supreme Court of Cassation