Territorial Jurisdiction in the Offence of Failure to Pay VAT: Commentary on Judgment No. 32280 of 2024

The issue of territorial jurisdiction in tax crimes, particularly concerning the failure to pay VAT and certified withholdings, is of crucial importance for the correct application of the law. The recent judgment No. 32280 of May 16, 2024, offers an important reflection on this topic, highlighting how the Court of Cassation has clarified the criteria to be adopted for identifying the place where the crime was consummated.

Regulatory and Jurisprudential Context

The judgment in question, issued by the Court of Cassation, addresses the issue of territorial jurisdiction in the absence of certain elements regarding the payment of taxes. Article 8 of the Code of Criminal Procedure establishes that jurisdiction is determined according to the place where the crime was consummated. However, in this specific case, the Court excluded the possibility of referring to the criterion of the company's actual registered office, highlighting that such a reference can generate uncertainties and complications in administrative proceedings.

• The criterion for jurisdiction must be based on the place where the crime was consummated.
• If the locus commissi delicti cannot be determined, the subsidiary criterion of the place where the crime was ascertained shall apply.
• The devaluation of the criterion of the actual registered office is necessary to ensure legal certainty.

The Ruling's Maxim

Offence of failure to pay VAT - Offence of failure to pay due or certified withholdings - Criterion for determining territorial jurisdiction - Place of consummation of the offence - Determination - Actual registered office of the company - Exclusion - Place of performance of the tax obligation - Consequences. For the purpose of determining territorial jurisdiction with regard to the offences of failure to pay VAT and failure to pay due or certified withholdings, in the absence of certain elements regarding the actual payment of the tax sufficient to identify the effective "locus commissi delicti", the criterion of the taxpayer's actual registered office cannot be used. Instead, the place where the offence was consummated must be identified pursuant to Article 8 of the Code of Criminal Procedure. Consequently, where such determination is impossible, the subsidiary criterion of the place where the offence was ascertained, as provided for in Article 18, paragraph 1, of Legislative Decree No. 74 of March 10, 2000, must be applied. This criterion, due to its special nature, prevails over the general rules set forth in Article 9 of the Code of Criminal Procedure. (In its reasoning, the Court added that requirements of legal certainty necessitate the devaluation of the criterion of the actual registered office, the ascertainment of which, being tied to the factual data of the effectiveness of such office, leads to an unnecessary burden on administrative action).

The maxim just reported incisively clarifies the Court's positions, emphasizing the need for a pragmatic approach oriented towards legal certainty. It is essential for legal professionals to understand how these indications influence defense strategies and the direction of tax investigations.

Conclusions

In conclusion, judgment No. 32280 of 2024 represents a significant step forward in defining territorial jurisdiction in matters of tax crimes. The Court of Cassation has established a clear principle: jurisdiction cannot be determined based on the company's actual registered office but must be founded on more objective criteria. This approach not only simplifies administrative action but also protects taxpayers' rights, ensuring a fairer and more transparent application of tax regulations.