The Deductibility of Legal Expenses in Criminal Defense: Commentary on Ordinance No. 9910 of 2024

Recently, Ordinance No. 9910 of April 11, 2024, has attracted the attention of legal practitioners and companies. The central issue concerns the deductibility of legal expenses incurred by companies for the defense of their directors in criminal proceedings. This topic is of fundamental importance as it directly touches upon the management of corporate resources and the tax consequences for businesses.

The Content of the Ordinance

According to the Court, legal expenses are not deductible for personal income tax (I.R.P.E.F.) purposes. The Court emphasized that, to be considered deductible, expenses must be related to an activity that can generate profits. This principle is based on Article 109 of Presidential Decree No. 917 of 1986, which establishes that the deductibility of expenses is subject to their relevance to the business activity.

Expenses for the criminal defense of corporate bodies - Deductibility - Exclusion - Basis. In terms of income taxes, legal expenses incurred by the taxpayer company for the defense of its directors in a criminal proceeding are not deductible since, for the purposes of relevance to business activity, which is a prerequisite for deductibility under Article 109 of Presidential Decree No. 917 of 1986, it is not sufficient that the cost is generally consequent to the exercise of the business, but its correlation with an activity potentially capable of producing profits is necessary.

Implications for Companies

This decision has several implications for businesses, including:

  • Limitation of the ability to deduct legal expenses, increasing the tax burden on companies.
  • Need for careful evaluation of legal expenses and their relevance to the business activity.
  • Possible reduction in companies' willingness to hire directors or executives due to the tax inefficiency associated with legal defense.

Furthermore, this ruling may influence companies' legal defense strategies, prompting them to consider alternatives to reduce legal costs and to reevaluate their organizational structures.

Conclusions

In conclusion, Ordinance No. 9910 of 2024 represents an important clarification on the deductibility of legal expenses in the context of criminal defense for companies. Businesses must be aware of these restrictions and review their tax policies and risk management practices. Understanding the current regulations and judicial rulings is essential for proper tax planning and optimal management of corporate resources.

Bianucci Law Firm