Cass. pen., Sec. III, Judgment no. 18214/2024: clarifications on the liability of tax withholding agents

The recent judgment of the Court of Cassation no. 18214 of May 9, 2024, offers important insights into the criminal liability of tax withholding agents in cases of failure to pay withheld taxes. The decision, in particular, emphasizes the need for proper issuance of tax certificates to employees to avoid criminal liability. Let's analyze the main aspects of the ruling.

The case under review

The appeal filed by the Public Prosecutor General at the Court of Appeal of Turin concerned A.A., who was acquitted by the Court of Appeal for the crime of failure to pay due withheld taxes. The judges held that the electronic submission of certificates to the Revenue Agency did not satisfy the obligation to deliver them to the withholding agents, a necessary condition for the crime to be constituted.

The issuance of certificates to withholding agents is a fundamental requirement for the constitution of the crime of failure to pay withheld taxes.

Analysis of the judgment

The Court of Cassation confirmed the decision of the Court of Appeal, highlighting that the mere electronic sending of certificates to the Agency does not equate to their delivery to employees. This aspect is crucial, as the law requires tax withholding agents to actually issue the certificates to employees, allowing them to use these documents for their tax returns.

• Art. 10-bis of Legislative Decree no. 74/2000: penalizes the failure to pay withheld taxes.
• Constitutional Court no. 175/2022: reiterates the need to issue certificates to withholding agents.
• Presidential Decree no. 332/1998: establishes the operational procedures for submitting tax returns.

In particular, the Court emphasized that the issuance of certificates to employees is essential for the crime to be constituted, as the provision in question aims to protect employees' rights and ensure the effective compliance with tax obligations.

Practical implications for tax withholding agents

This ruling has significant practical implications for tax withholding agents, who must pay particular attention to the correct fulfillment of their obligations regarding the issuance of certificates. It is not enough to transmit the information to the Revenue Agency; it is necessary to ensure that employees actually receive the documents.

Otherwise, withholding agents may incur criminal penalties, as highlighted by the Court. It is essential for employers to implement adequate procedures to ensure the delivery of certificates, avoiding merely sending them electronically.

Conclusion

Judgment no. 18214 of the Court of Cassation represents an important clarification on the liability of tax withholding agents. It reiterates the importance of issuing certificates to employees, an indispensable element for avoiding criminal penalties. It is essential that all involved parties comply with current regulations to ensure proper fulfillment of tax obligations and protect employees' rights.