231/2001

Legislative Decree 231/2001 introduced the administrative liability of companies for some crimes committed by employees, subjects in top positions (directors, general managers and liquidators) or consultants in the interest and to the advantage of the company itself.

AMONG THE MOST RELEVANT OFFENSES OF Legislative Decree 231/2001, WE REMEMBER:

Undue receipt of funds, fraud to the detriment of the State or a public body or for the achievement of public funds and IT fraud to the detriment of the State or a public body
Computer crimes and unlawful data processing
Extortion, undue inducement to give or promise other benefits and corruption
Crimes against industry and trade
Corporate offenses
Market abuse
Crimes of manslaughter and serious or very serious negligent injuries, committed in violation of accident prevention regulations and the protection of hygiene and health at work
Crimes relating to violation of copyright
Inducement not to make statements or to make false statements to the judicial authority
Environmental crimes
Employment of illegally staying third-country nationals

THE SANCTIONS PROVIDED FOR THE COMMISSION OF RELEVANT OFFENSES PURSUANT TO Legislative Decree 231/2001 CAN BE SUMMARIZED AS:

Risk of conviction up to € 774,500.00 if the Organizational Model does not provide for suitable measures to prevent the administrative liability of entities for tax offenses.

The reform of tax offenses introduced with Law no. 157, of conversion of the D.L. 26 October 2019, n. 124 (so-called tax decree) introduced for the first time in the legal system the provision of criminal liability of legal persons for the benefit of which criminal conduct in tax matters has been carried out.

The regulatory intervention is part of a constant extension of the administrative responsibility for a crime of the entity, also achieved with a European intervention in this sense (the EU directive 17/1371), of the Council of Ministers of 23 January 2020 examined and preliminarily approved the draft Legislative Decree relating to the implementation, and by a political climate, in criminal matters, extremely rigorous towards the so-called “Great tax evaders”.

The new art. 25 quinquiesdecies of Legislative Decree 231/2001 therefore indicates for which tax crimes, committed for the interest or advantage of the entity, administrative liability may arise, namely:

Fraudulent declaration through the use of invoices or other documents for non-existent transactions, fine of up to five hundred shares;
Fraudulent declaration through the use of invoices or other documents for non-existent transactions, fine of up to four hundred quotas;
Fraudulent declaration through other artifices, pecuniary sanction up to five hundred shares;
Issue of invoices or other documents for non-existent transactions, fine of up to five hundred shares
Issue of invoices or other documents for non-existent transactions, fine of up to four hundred quotas;
Concealment or destruction of accounting documents, fine of up to four hundred quotas;
Fraudulent evasion of the payment of taxes, fine of up to four hundred shares
Fraudulent eviction of the payment of taxes, fine of up to four hundred shares

The amount of a share varies from a minimum of € 258.00 to a maximum of € 1,549.00, therefore, the pecuniary sanction for companies whose legal representatives have committed the aforementioned crimes, imposed by the judge on the basis of the gravity of the fact, the degree of responsibility of the entity, the activity carried out to eliminate or mitigate the consequences of the fact and to prevent the commission of further offenses, may reach up to € 774,500.00.

The regulatory action was therefore limited to the facets of the crime of tax fraud, considered more serious and frequent (and which was also reformed in terms of the legal framework provided for individuals). On the other hand, the less serious crimes (characterized by the absence of fraudulent conduct) of unfaithful declaration, omitted declaration, omitted payment, as well as omitted payment through undue compensation are excluded.

In light of all the foregoing, it will therefore be necessary to update the models that do not take into account the reform, under penalty of inadequacy of the model itself to prevent the crimes in question.

Characteristics of the Supervisory Body?

In addition to the adoption of an Organizational and Management Model, Legislative Decree 231/2001 requires the establishment (within the company) of a Supervisory Body with the task of verifying the effectiveness, adequacy and topicality of the Organizational and Management Model, as well as to propose any updates or adjustments of the organizational models to the management bodies.

The Supervisory Body must be autonomous and independent, professional (i.e. with sufficient technical skills to carry out assessments and supervise) and permanent.

The sanctions can be applied both as a precautionary measure and as an effect of a final sentence. The company can evade responsibility for the aforementioned crimes and, therefore, be exempt from it, if it demonstrates:

In other words, pursuant to art. 6 of Legislative Decree 231/2001, the company is not liable for crimes committed by top management or employees if it proves that:

The management body has adopted and effectively implemented, before the offense was committed, organizational and management models suitable for preventing crimes of the type that occurred
The task of supervising the functioning and observance of the models and ensuring their updating has been entrusted to a body of the company with autonomous powers of initiative and control.
The people committed the crime by fraudulently evading the organization and management models
There was no omission or insufficient supervision by the supervisory body