Judgment No. 17015 of 2022: Active Repentance and Tax Crimes

Judgment No. 17015 of December 21, 2022, filed on April 21, 2023, by the Court of Cassation, addresses a crucial issue in tax criminal law. It clarifies the applicability of the mitigating circumstance of active repentance, provided for by Article 62, paragraph one, no. 6 of the Criminal Code, to tax crimes, specifying the reasons for its exclusion in such cases.

The Issue of Active Repentance

The Court of Cassation has established that the mitigating circumstance of active repentance cannot be applied to crimes provided for by Legislative Decree No. 74 of March 10, 2000. This is because, according to the judges, active repentance refers solely to situations where consequences that are not identifiable as financially compensable patrimonial or non-patrimonial damage are eliminated or mitigated.

Circumstance of active repentance under Art. 62 no. 6, Criminal Code - Applicability to tax crimes - Exclusion - Reasons. In the context of tax crimes, the mitigating circumstance of active repentance under Art. 62, paragraph one, no. 6, second part, Criminal Code, as it refers only to the elimination or mitigation of consequences that are not identifiable as financially compensable patrimonial or non-patrimonial damage, is not applicable to the offenses provided for by Legislative Decree of March 10, 2000, No. 74, in which the "compensation for damage" caused to the State Treasury constitutes an independent act, specifically provided for by Articles 13, 13-bis, and 14 of the aforementioned decree, as a cause for non-punishability or a mitigating circumstance, if carried out in the manner, form, and within the timeframes indicated in the said provisions.

Implications of the Judgment

This judgment highlights the importance of distinguishing between different categories of crimes and their respective mitigating measures. In tax offenses, the compensation for damage to the State Treasury plays a central role, constituting an independent cause for non-punishability or a mitigating circumstance. The provisions of Articles 13, 13-bis, and 14 of Legislative Decree No. 74/2000 explicitly regulate the methods and timelines for compensation, further differentiating these crimes from general offenses provided for by the Criminal Code.

Final Considerations

In conclusion, Judgment No. 17015 of 2022 by the Court of Cassation represents an important step in defining the discipline of tax crimes. It clarifies that, while active repentance may be an option for mitigating the consequences of certain offenses, it cannot be invoked in tax matters unless the specific regime provided by law is followed. This implies that taxpayers and professionals in the sector must pay greater attention to current regulations and compensation methods in case of tax violations.