Criminal law of the Company, Omitted payment of taxes, changed penalty threshold, Court of Cassation, III Criminal Section, Judgment n. 10810 of 12/03/2018

Article 10-bis of Legislative Decree no. 74 of 2000 and art. 10-ter of Legislative Decree no. 74 of 2000

Essential lines of the arguments

While the phenomenon of the succession of criminal laws over time generally concerns the subsequent modification of an incriminating rule that may concern either the abstract legal case, that is to say the precept, or the discipline of the abstract legal case, namely the sanctioning treatment, as well as the accidental elements of the crime such as the circumstances foreseen by rules other than the offense or, finally, the abstract legal case and at the same time its discipline, the aboliti ° partial criminis occurs in the context of this phenomenon of intertemporal right when the normative change affects on the legal abstract fact restricting the field of operation, ie to exclude one or more constituent elements of the offense provided by the previous law, while maintaining the others.

As clarified by this Court in its supreme forum “because there is no total abolition of the offense provided for by the provision formally replaced (or abrogated with the simultaneous introduction of a new provision linked to the first) it is necessary that the case envisaged by the subsequent law was also punishable according to the previous law, it falls within the scope of the provision of this, which normally happens when there is a relationship between the two rules of specialty, both in case it is special the next rule as in that in which special is the first .

However, if it is the next rule to be special, we find ourselves in the presence of a partial abolition, because the area of ​​punishment related to the first comes to be circumscribed, remaining expunged all those facts that, although falling into the general rule, are lacking specializing elements “(Section U. No. 25887 of 26/03/2003).

In other words, the precept of the partial criminis is a relationship of specialty between the two incriminating norms, such that the norm that has come to rule excludes the criminal relevance of the sub-species in which it is no longer included.

Since the facts foreseen as criminal by the previous law do not constitute for the subsequent criminal law, the rule of article 2, second paragraph, cod. and not the provisions of paragraph 4, since the retroactive effect of the subsequent provision did not arise.

“This, when it is special compared to the previous one, limits itself to cut out a portion of the old one, of which it retains its punishment, preventing the abrogation from having a retroactive effect of abolition, in short, maintaining the punishment of a fact committed in the a general rule when it has been replaced by a special rule does not mean to retroactively apply it but rather to exclude its abolition effectiveness for the portion of the case envisaged by the general norm which coincides with that of the subsequent special rule “(Section U., cit).

The changed threshold for the punishment of offenses of non-payment of withholding taxes (Article 10-bis of Legislative Decree No. 74 of 2000) and non-payment of value added tax (Article 10-ter, of Legislative Decree no. Legislative Decree No. 74 of 2000), below which they only operate with administrative sanctions, introduced by Legislative Decree no. Igs. 158/2015 falls therefore in the partial repeal of the two crimes, in which the changed judgment of offensitivity of the omissive conduct has been translated into the narrowing of the area of ​​their criminal relevance, with assignment to the administrative one of the conducts that lie below the new threshold.

By setting the punishment threshold a constitutive element of both the abstract legal cases of the aforementioned provisions, it is evident that its modification makes the new special situation in relation to the previous one because it restricts its application scope, remaining the area of ​​punisability limited to conducts only which are above the new threshold.

Therefore, in this case, the principle established in a recent arrest of this same Section, according to which the modification of art. 10-bis of Legislative Decree no. 74 of 2000 by art. 7, paragraph 1, lett. b) of Legislative Decree no. 158 of 2015, which excluded the criminal relevance of the omitted payment of withholdings owed or certified up to the amount of E. 150,000.00, has determined a partial “abolitio criminis” with reference to the conduct involving amounts equal to or less than said amount, committed in an earlier period. (Section 3, No. 34362 of 11/05/2017 – Dep. 13/07/2017, Rv. 270961), fully applicable to the similar amendment made by the same d. Igs. art. 10-ter which excluded the configurability of the offense for the omitted payments of the advance on the value added tax lower than the threshold of € 250,000 for each tax period.

Finding therefore application in this case the art. 2, second paragraph, cod. Pen., and 673, first paragraph, cod. proc. pen., the contested order must therefore be annulled without referral and for the effect revoked the three criminal penalties issued by G.i.p. of the Court of Bari because the fact is no longer required by law as a crime.

Source Supreme Court of Cassation