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Territorial Jurisdiction in Tax Crimes: Analysis of Cass. pen., Sez. III, n. 32280 of 2024

The ruling n. 32280 of 2024 from the Court of Cassation provides significant insights regarding territorial jurisdiction in tax crimes, particularly concerning the failure to pay VAT. The case in question involves A. A., the legal representative of the company Adrintec Srl, accused of failing to pay the VAT due. The Court of Milan had to decide on the territorial jurisdiction, raising questions that reflect a very complex jurisprudential debate.

The Regulatory Context and Jurisdictional Issues

The Court examined the exception of incompetence for territory raised by the defense, which argued that jurisdiction should be attributed to the Court of Naples, where the company is effectively located. This point is crucial, as the crime of failure to pay VAT, according to art. 10-ter of Legislative Decree n. 74 of 2000, is consummated when the payment deadline expires.

In the absence of a certain element regarding the principle of VAT payment, jurisdiction must be determined according to the place of the commission of the crime.

The judge in Milan highlighted that, although there are conflicting jurisprudential orientations, it is essential to establish where the crime is consummated to determine jurisdiction. On one hand, some judges argue that the place of consummation coincides with the actual location of the company, while others assert that, since there is no unique physical location for payment, reference should be made to the place of assessment.

Conflicting Jurisprudential Positions

  • First orientation: the place of consummation coincides with the actual location of the company.
  • Second orientation: the place of assessment of the crime is predominant, as payment can occur electronically from anywhere in Italy.

The Court, adopting the position referring to the place of assessment, determined that the territorial jurisdiction for the case in question should be attributed to the Court of Milan. This is because no concrete elements emerged confirming that the VAT payment had been made in a specific location, making it impossible to identify the locus commissi delicti through the general rules.

Conclusions

The ruling n. 32280 of 2024 represents an important step forward in clarifying the issues of territorial jurisdiction in tax crimes. The importance of establishing a clear and shared criterion is fundamental not only for the protection of taxpayers' rights but also to ensure legal certainty. Therefore, the decision of the Court of Cassation not only addresses a specific dispute but also clarifies a crucial aspect of Italian tax legislation.