Analysis of Judgment No. 1810 of 2024: Concurrence Between Fraudulent Avoidance and Fraudulent Bankruptcy

Judgment No. 1810 of 2024, issued by the Court of Reggio Calabria, has brought attention to a topic of significant importance in the field of tax criminal law: the concurrence between the crime of fraudulent avoidance of tax payments and that of fraudulent bankruptcy. The decision is noteworthy not only for its legal content but also for the practical implications it carries for taxpayers and entrepreneurs.

The Regulatory Context

The judgment is situated within an evolving regulatory framework, particularly concerning the repeal of Article 11 of Legislative Decree No. 74 of 2000, which modified the reference parameters for the crime of fraudulent avoidance. The now-repealed provision punished anyone who had partially or completely avoided tax payments. With the repeal, the issue arises of how to interpret and apply existing regulations, particularly in relation to fraudulent bankruptcy.

The Configurability of Concurrence

Crime of fraudulent avoidance of tax payments under Article 11 of Legislative Decree No. 74 of 2000 (now repealed) - Concurrence with the crime of fraudulent bankruptcy - Configurability - Reasons - Hypothesis. The concurrence between the crime of fraudulent avoidance of tax payments and that of fraudulent bankruptcy for distraction is configurative, given that the relevant incriminating norms do not regulate the "same matter" ex Article 15 of the Criminal Code, due to the diversity of the legal goods protected (fiscal interest in the successful outcome of forced collection on one hand, and the interest of the creditors' mass in the satisfaction of their rights on the other), the nature of the abstract cases (the fiscal one being of danger, the bankruptcy one being of damage), the subjective element (specific intent regarding the first, generic intent regarding the second), and the potential audience of active subjects (more restricted in the bankruptcy crime, formed only by the declared bankrupt entrepreneur and the administrative bodies of corporate enterprises and similar entities, broader in the fiscal one, abstractly referable to any taxpayer, even if not an entrepreneur or similar). (Hypothesis prior to the repeal of Article 11 of Legislative Decree March 10, 2000, No. 74, provided by Article 101, paragraph 1, letter z), Legislative Decree November 5, 2024, No. 173).

The judgment clarifies that the two crimes do not overlap, as they protect distinct legal goods: the fiscal interest in the forced collection of taxes and the interest of creditors in the bankruptcy procedure. This distinction is fundamental for understanding how and when concurrence can be configured. Furthermore, the difference in the nature of the cases is highlighted: while the tax crime is one of danger, the bankruptcy crime is one of damage.

Practical Implications

The implications of this judgment are manifold:

  • It strengthens the protection of fiscal interests, emphasizing the importance of complying with tax obligations.
  • It clarifies the boundaries of responsibility for entrepreneurs, avoiding confusion between different types of crimes.
  • It offers a clearer regulatory framework for legal defense in cases of disputes concerning tax and bankruptcy crimes.

In this way, it contributes to greater legal certainty, which is essential for economic planning and business management.

Conclusion

In conclusion, Judgment No. 1810 of 2024 represents an important step forward in defining legal responsibilities in the tax and bankruptcy fields. It is essential that legal professionals and entrepreneurs pay attention to these distinctions to avoid unexpected legal consequences and to ensure proper management of their tax and commercial obligations.

Bianucci Law Firm