Commentary on Sentence No. 37642 of 2024: Crime of Fraudulent Declaration and Suitability of Fraudulent Means
The sentence No. 37642 of June 6, 2024, filed on October 14, 2024, provides significant insights on the topic of fraudulent declaration through other artifices. In particular, the Court of Cassation addressed the necessity of an "ex ante" assessment regarding the suitability of the fraudulent means used to obstruct the financial administration. This aspect is crucial for understanding the configuration of the crime and its consequences.
The Legal Context of Fraudulent Declaration
Fraudulent declaration is governed by Article 3 of Legislative Decree No. 74 of March 10, 2000, which punishes anyone who, through artifices, obstructs the assessment of taxes. The Court reiterated that the suitability of the fraudulent means must be evaluated from a forward-looking perspective, that is, before the actual deception occurs.
- Suitability of the means: must be evaluated in relation to its ability to mislead the financial administration.
- "Ex ante" assessment: necessary to appreciate the fraudulent nature before it emerges.
- Exclusion of evidence: fraud is excluded only if it is evident "ictu oculi".
Analysis of the Court's Maxim
Crime of fraudulent declaration through other artifices - Suitability of fraudulent means - “Ex ante” assessment - Necessity - Consequences. In the context of fraudulent declaration through other artifices, the suitability of the fraudulent means to obstruct the assessment and to mislead the financial administration regarding the components that contribute to the determination of the tax or taxable income must be appreciated "ex ante" and is excluded only in cases where the fraud is "ictu oculi" evident, not requiring any type of assessment.
The maxim highlighted by the Court clarifies that the analysis of fraud cannot be relegated to a moment after the assessment. It is essential for the judge to evaluate whether the means used was capable of generating an error in the determination of the tax, before the effects of the fraudulent action occur. This approach aligns with the intent to ensure effective protection of the financial administration and, more generally, of tax legality.
Conclusions
Sentence No. 37642 of 2024 represents an important step forward in the jurisprudence regarding fraudulent declaration. The distinction between "ex ante" assessment and the possibility of excluding fraud only in evident cases provides a clearer and more precise regulatory framework. This clarity is fundamental not only for legal professionals but also for taxpayers, so they can better understand the consequences of their actions in the tax context.
