MPM Legal News – Self laundering and tax offenses: a dissonant coupled

By 1943, Winston Churchill had suggested that to get some results with the Italian people you were to use the double method of carrot and stick. And so, mindful of this teaching, usually the tax legislator, when “grant” amnesty or institutions for the facilitated definition of tax violations, accompanies them with a tightening of discipline or increased penalties . This portend for the taxpayer that this is, indeed, the last interesting opportunity to get right, then the punishment will be heavy.

In previous tax shields, for example, the legislature had significantly increased the penalties for violations of the obligations of the monitoring, so that then was censored at Community level and had recently backtrack and reduce them again. So, for the new version of the shield, which more elegantly called voluntary disclosure , the legislature could no longer use the metus of increased sanctions; and, obviously not wanting to give up a little of deterrence, he added , at the same time (with the law 186/2014), the dell’autoriciclaggio offense in the Criminal Code .

From the time he was discussing, in doctrine, in public and following the recommendations of international institutions, and so the times were ripe for its introduction.

But that does not mean that this important reform of the penal code would have to be carried out independently and well-considered , and not instead inserted, mo ‘”bogeyman”, in a legislative text for other purposes and different context, approved for racing the urgency of the measures of voluntary disclosure (with the excuse of urgency, in fact, have been rejected all the amendments tabled in the Senate than the text passed by the House).

Except that the inclusion – estemporaeo – in the same legislative text of voluntary disclosure , however, provides an opportunity for a brief reflection on the delicate relationship between the new crime and criminal offenses dell’autoriciclaggio tributaries.

But proceed with order and we see, first and briefly, what is the self laundering and how it is governed by the newly introduced art. 648 ter cp 1

As is known, in our legal system there was the so-called privilege of immunity for self laundering , in the sense that the offenses referred to in Articles. 648 bis (money laundering) and 648 ter (use of money goods or assets of illicit origin) could not be contested to the authors or competitors of the predicate offense.

This is because it objected that the behavior of concealing the proceeds of crime was a post factum not punishable or otherwise a whole, essential and necessary, with respect to the conduct of the crime – the source and therefore its autonomous punishment would involve a breach of the ne bis in idem substantial or still is invoked, to support immunity for self laundering, the principle that not to incriminate oneself , since the conduct appeared necessary not autodenunciarsi of the predicate offense (eg. the thief hiding the stolen goods) .

Except that, more recently, scholars have begun to reconsider these objections.

Indeed, the crime of money laundering has evolved from its original formulation, reconnected to certain heinous offenses (kidnapping, etc.) of which constituted a kind of augmented penalty, and has expanded being able to reconnect to all sorts of crime and especially coming to protect a stand-alone good of life which the economic order and the administration of justice. This gained autonomy from the predicate offense, of course, takes away the substance to the main objections against self laundering.

Even public opinion then began to advocate the introduction dell’autoriciclaggio, in relation to the Community institutions and for the international fight against organized crime which blooms thanks to recycling.

Despite careful studies on the offense in question and on the formulation of regulations made ​​by the Greek Commission, the regulatory text, however, is introduced, in a hurry, in the law just passed on the voluntary disclosure , and introduces an autonomous offense in the Criminal Code of autoririciclaggio (instead eliminate the safeguard clause from the text that punishes the crime of money laundering).

The new offense punishes ” those who had committed or participated in committing a crime committed intentionally employs, replaces, moved, in economic, financial, business or speculative, money, goods or other benefits from the commission of this crime, so concretely hinder the identification of their criminal origin ” .

The regulatory text, even for the rush of his preparation, leaves serious uncertainties that, if serious and unfortunately usual in tax matters, are not tolerable in criminal matters, where the rule of law, with the corollary of the determination of the case punitive, becomes very foundation of the system.

See, for example, the regulatory requirement of having hindered practical identification of criminal origin. Well when the obstacle must be considered “real”? Many speeches, in criminal sull’autoriciclaggio, you certainly will enliven this. And yet it is understandable that for the homologous laundering offense that requirement of concreteness is not expected. Another point from the disputed interpretation is that of ‘”personal use”, which is not punishable, and its identification.

But finally we come to the relationship of this crime with tax crimes.

All the commentators of the recent reform stressed the close correlation between the self-laundering and tax offenses , as if there is a correspondence and necessitated. The first comments, in fact, assume that the crime of self laundering predicate offense may have for a tax offense.

Now, if indeed it is likely that future criminal tax is often accompany the dispute dell’autoriciclaggio, however the consideration of tax crime as a predicate offense dell’autoriciclaggio deserves a more careful consideration .

The self laundering , as well as the homologous figure of recycling, requires that there is an amount of money or other economic benefits from the (bike place) offense and then recycled ; So this amount, the entity economically measurable, must be individually identifiable and must come from the offense. However, in most tax offenses (statement infelede, non declaration, non-payment), the offender is not a sum of money as proceeds of crime (which may be for example the remuneration received by an illegal activity) since he as spared a portion of its assets because it has not paid the tax due; but it is of its heritage, and not of a gain from the offense, and is also a saving, not a greater sum from and “recyclable”. For as formulated by law the offenses, money laundering as dell’autoriciclaggio, does not seem, then, that tax offenses may even give rise to those gains that are likely to be recycled .

Not to mention that, however, can not be verified as part of the tax savings is actually reinvested or if the use concerns the other hand, lawfully constituted, the assets of the taxpayer.

Do not you ignore that the Criminal Cassation (most recently, Cass., 15 February 2012, n. 6061) stated that the recycling, and therefore also the self laundering, may also apply to offenses – source of tax legislation since the formulation also speaks generally of any “other benefits” and thus savings. But the objections raised above do not seem outdated anyway.

If the legislation already is not the best, case law, which calls itself the “living law”, should take care to set stricter standards, particularly in the interpretation of the types of criminal activity. In particular, in terms of self-laundering, it is hoped that there is more rigorous than that shown on the theme of recycling, where the courts have always taken very broad interpretations, especially with regard to situations borderline as personal consumption or the relationship with the crime – source of tax nature that, as economic crime, otherwise s’accompagnerebbe invariably with a challenge to automatic recycling.

Self laundering and tax offenses , indeed, will always go “hand in hand” in the years to come, but this will not happen for no logical and harmonious coordination between the two criminal offenses; indeed there are, in the relationship between them, several uncertainties and jarring dissonances , that only jurisprudence, at this point, could, with wisdom, mitigate.

 

Taken from http://www.oasistemi.it/

By The Daily Legal


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