Commentary on Judgment No. 37398 of 2023: Administrative Offense and Fraud Against the State

Judgment No. 37398 of February 10, 2023, issued by the Court of Cassation, offers an important reflection on the intersection between administrative and criminal law, particularly regarding the evasion of the single tax on betting pools and wagers. Analyzing the case of S. B., the Court clarified that there is no specialty between the administrative offense provided for by tax regulations and the crime of aggravated fraud against the State, emphasizing the need for a deeper understanding of the legal consequences of gaming activities.

The Legal Context of the Judgment

The judgment addresses a current issue: the abusive exercise of gaming or betting activities and related sanctions. The Court establishes that tax evasion does not necessarily require the use of artifices or misrepresentations, which are typical elements of the crime of fraud. In other words, an administrative offense can be established even in the absence of fraudulent conduct, but simply through the failure to pay due taxes.

Administrative offense provided for by tax regulations sanctioning the evasion of the single tax on betting pools and wagers - Relationship with the crime under Article 640, paragraph two, no. 1), of the Criminal Code - Specialty - Exclusion - Reasons - Factual circumstances. In the context of the abusive exercise of gaming or betting activities, there is no specialty between the administrative offense provided for by tax regulations sanctioning the non-payment of the single tax on betting pools and wagers and the crime of aggravated fraud against the State (in this case, constituted by the use of "software" that allowed blocking foreign unauthorized websites on which "online" bets were placed), because the tax evasion resulting from the illicit collection of bets is independent of the use of artifices and misrepresentations, as well as of misleading the injured party and of the existence of a causal link between profit and damage.

Implications of the Judgment

The implications of this judgment are significant for several reasons:

• Regulatory Clarity: The Court has clarified that tax and criminal regulations intersect but do not overlap. This means that administrative and criminal sanctions can coexist without conflict.
• Evasion Prevention: The judgment underscores the importance of combating tax evasion through the imposition of administrative sanctions, but also through criminal proceedings when necessary.
• Consumer Protection: The use of software to block unauthorized sites poses a risk to consumers, who must be protected from illicit activities in the gaming sector.

Conclusions

In conclusion, judgment No. 37398 of 2023 provides important guidance for understanding the relationship between administrative and criminal offenses in the context of wagers and games. The distinction between tax evasion and fraud against the State is fundamental to ensuring the correct application of laws and protecting both the treasury and consumers. It is essential that regulations continue to evolve to address the new challenges posed by technologies and online gaming practices.