Confiscation for disproportion can affect real estate, bank accounts, corporate shares, vehicles, and other assets even when they are not indicated as the direct profit of the specific tax crime charged. For anyone receiving a seizure order or facing criminal proceedings in Milan, the practical doubt is often this: can assets purchased years before, registered to a family member, or used in the business be targeted?
I will explain the prerequisites of the measure, why it does not coincide with the confiscation of the crime's profit, and which facts truly change the answer. We will also examine the significance of the date of the conduct, the thresholds provided by law, the actual availability of the assets, and the documentation proving their lawful origin.
Profit Confiscation and Confiscation for Disproportion: The Difference That Matters
Ordinary tax confiscation concerns the price or profit of the tax crime. Article 12-bis of Legislative Decree No. 74 of 2000 provides, in the event of conviction or plea bargaining for a tax offense, for the confiscation of assets constituting such price or profit; if they cannot be identified, a confiscation by equivalent may be ordered on assets available to the offender, up to the corresponding value. The text of Article 12-bis recalled by the 2024 reform thus links the measure to the economic advantage of the contested act.
Confiscation for disproportion, also known as expanded confiscation or confiscation in special cases, instead follows a different logic. Article 12-ter of the same decree refers to Article 240-bis of the Penal Code for certain tax offenses and beyond specific thresholds. In this case, it is not necessary to prove that each asset is the profit of the crime subject to the trial: what matters is the disproportion between assets and declared income or economic activity, the availability of the asset, and the failure to justify its lawful origin. Article 39 of Decree-Law No. 124 of 2019, in its current text, indicates the crimes and thresholds that trigger this referral.
The two measures can coexist, but they do not share the same object. If the prosecution identifies a quantified tax profit, the discussion concerns the nexus with the crime and the value to be ablated. If confiscation for disproportion is put forward, the comparison expands to the asset history: purchases, financing, savings, effectively available income, transfers, donations, and formal-only ownership become central data.
When Article 12-ter Applies to Tax Crimes
Not every tax offense allows this confiscation. Article 12-ter recalls five offenses: fraudulent declaration using invoices or documents for non-existent transactions, fraudulent declaration using other artifices, issuance of invoices or documents for non-existent transactions, and the two hypotheses of fraudulent evasion of tax payment. The referral operates in cases of conviction or plea bargaining and only when the additional threshold provided for the individual offense is exceeded.
The thresholds are not interchangeable. For fraudulent declaration using false invoices and for the issuance of false invoices, the amount of fictitious passive elements or untruthful amounts must exceed 200,000 euros. For fraudulent declaration through other artifices, the evaded tax must exceed 100,000 euros. In fraudulent evasion of tax payment, the parameter is greater than 100,000 euros for the first paragraph of Article 11 and greater than 200,000 euros for the second paragraph. The rule thus distinguishes the evaded tax from fictitious elements and from the amount of taxes, penalties, and interest: applying the wrong parameter alters the entire verification.
The date of the conduct also counts. The discipline of Article 12-ter introduced in 2019 applies exclusively to conduct carried out after the entry into force of the conversion law of Decree-Law No. 124 of 2019, i.e., from December 25, 2019. It is therefore not enough that the proceedings began after that date or that the tax assessment is subsequent: the conduct constituting the crime must be placed in time. This transitional provision is expressly provided for by Article 39 of Decree-Law No. 124 of 2019.
Exceeding the threshold does not close the reasoning. Article 240-bis also requires that the assets be disproportionate to the income declared for tax purposes or to the economic activity of the subject and that their origin is not justified. The Constitutional Court has clarified that disproportion does not coincide with a simple difference between income and assets: it must be a significant imbalance, to be considered with reference to the moment in which the individual assets were purchased. This is explained by judgment No. 33 of 2018.
How Asset Disproportion is Assessed
The moment of purchase is decisive. A property purchased with a mortgage, a car bought after the documented sale of a previous asset, and corporate shares subscribed with traceable savings are not evaluated as if they were acquired without history. For each asset, it is essential to compare the cost incurred, the sources available at that time, any financing, and the existence of evidence consistent with the operation.
It is incorrect to extend the check to the entire asset history without limits. The same constitutional ruling recalls a criterion of temporal reasonableness: the asset should not be acquired at a time so distant from the predicate crime as to make the presumptive connection with unlawful accumulation unreasonable. It is not an arithmetic rule valid in every proceeding, but it is an important distinction when remote investments, inherited assets, or purchases prior to the contested phase are involved.
Lawful origin must be made credible with verifiable facts. Contracts, bank transfers, bank statements, notarized deeds, tax returns, balance sheets, bank financing, receipts, and succession documents can show where the money comes from. An isolated document is not enough if it does not match dates, amounts, and financial passages. On the contrary, traceability is not a formality: it allows reconstructing the relationship between economic availability and the purchase of the asset.
It is not sufficient to generically invoke undeclared money. Article 240-bis establishes that the legitimate origin of assets cannot be justified by arguing that the money used to purchase them derives from tax evasion, unless the tax obligation has been extinguished in the forms of law. The current text of Article 240-bis of the Penal Code therefore requires distinguishing between a demonstrable lawful source and the mere assertion of having had availabilities that did not emerge fiscally.
Assets Registered to Third Parties and Corporate Assets
Formal registration alone is not decisive. Article 240-bis also considers assets of which the subject appears to have availability through an interposed physical or legal person. For this reason, an account or property registered to a family member, a partner, or a company is not automatically extraneous to the measure. The point is to understand who actually disposes of it, who provided the money, who receives benefits, and whether the registration corresponds to an autonomous asset position of the third party.
The genuinely extraneous third party has a distinct position. Anyone claiming to be the owner of an asset must be able to demonstrate a real purchase, own means, or a lawful and consistent cause of the transfer. A donation, an intra-group financing, or a purchase by a company can be perfectly lawful, but they must find confirmation in documentation, accounting records, and payment flows. Kinship or personal closeness does not replace the proof of actual economic autonomy.
For business, it is necessary to separate corporate assets from personal availability. Shares, operating real estate, machinery, and company liquidity can have a productive function and a documented origin through balance sheets, contracts, invoices, financing, and resolutions. However, the presence of a company does not render the question of indirect availability irrelevant. Two opposite errors must be avoided: treating every corporate asset as personal or assuming that the corporate veil makes any verification impossible.
Preventive Seizure, Tax Debt, and Choices Not to Be Confused
Seizure is not yet final confiscation. It is a precautionary measure that can bind assets during the proceedings to preserve them in view of possible confiscation. Precisely because the effects on accounts, property, or business activities can be immediate, the provision must be read by accurately distinguishing the indicated title: seizure aimed at the confiscation of profit or by equivalent, or seizure connected to confiscation for disproportion.
Installment payment specifically concerns profit confiscation. Article 12-bis, as amended in 2024, provides that seizure aimed at the confiscation of price or profit shall not be ordered if the tax debt is being extinguished through installment payments, conciliation, or judicial settlement and the taxpayer is up to date with payments, barring a concrete danger of dispersion of the asset guarantee. This discipline concerns paragraph 1 of Article 12-bis: it does not equate to an automatic rule excluding seizure or confiscation for disproportion disciplined by Article 12-ter.
Payment and asset defense answer different questions. Extinguishing or paying off the debt in installments can affect the tax position and, in the cases provided, the seizure of profit. It does not automatically prove that a property, a sum, or a corporate share has a lawful origin for the purposes of Article 240-bis. Concurrently, good asset documentation does not replace the effects that payment can have on tax and criminal disciplines. The two lines must be kept separate from the beginning.
Plea bargaining also requires attention regarding assets. Article 12-ter expressly contemplates the application of Article 240-bis even in the case of agreed sentences pursuant to Article 444 of the Code of Criminal Procedure. Therefore, the choice does not concern only the sentence: the possible effect on assets already seized or still exposed to the measure must also be considered. If you want to tackle this decision, I can help you sort out the charges, asset data, and practically viable alternatives.
What Elements to Prepare for an Effective Response
Chronological consistency is as important as the single document. It is useful to reconstruct, for each asset involved, the purchase date, price, payment method, financial availability, any mortgages or financing, and subsequent passages. For an asset registered to a third party, elements explaining the economic autonomy of that person or company are also needed. The goal is not to accumulate paperwork, but to make the declared origin verifiable.
The criminal charge must be compared with the correct threshold. The charging document or precautionary measure must indicate which tax crime is attributed, which economic parameter is deemed exceeded, and which assets appear disproportionate. From here, different alternatives derive: the temporal prerequisite of Article 12-ter may be missing, the additional threshold may not be reached, the availability of the asset may be contestable, or its lawful origin may be documented.
An occasional fact must not be automatically assimilated to criminal accumulation. In a 2025 ruling concerning a different predicate crime, the Constitutional Court reaffirmed a general criterion of Article 240-bis: the measure does not have the function of adding a patrimonial punishment, but of removing assets reasonably attributable to further submerged criminal activity. The judge must therefore be able to consider the isolated and occasional nature of the fact when this makes the presumption unreasonable. The principle is illustrated in judgment No. 166 of 2025.
Frequently Asked Questions
Can confiscation for disproportion target an asset that does not derive from the contested tax crime?
Yes, but not without conditions. Unlike profit confiscation, the measure under Article 240-bis can concern assets different from the immediate advantage of the crime. However, the predicate crime provided for by Article 12-ter, the exceeding of the relative threshold, a significant disproportion, and the absence of a credible justification of lawful origin must occur.
Can I prove lawful origin with a family loan?
A family loan can be relevant if it is real, consistent with the lender's availability, and verifiable in its passages. Bank transfers, contract, repayments, tax returns, and purchase date help give substance to the explanation. A sum declared only after seizure, without financial or patrimonial trace, instead has a much weaker weight.
Does installment payment of tax debt always avoid seizure?
No, not always. The law considers regular installment payments for seizure aimed at profit or price confiscation pursuant to Article 12-bis, barring a concrete danger of dispersion of the asset guarantee. This provision does not automatically eliminate the prerequisites of confiscation for disproportion, which follows the different referral of Article 12-ter to Article 240-bis.
Can an asset registered to my spouse be seized?
Registration to the spouse is not enough either to exclude or justify seizure. The question is whether the asset is actually in the availability of the investigated party through interposed registration or truly belongs to the spouse. Origin of money, economic capacity of the holder, management of the asset, and bank flows are elements that allow distinguishing the two situations.
Does plea bargaining exclude confiscation for disproportion?
No. Article 12-ter expressly provides for the application of Article 240-bis even in the case of sentence application upon request. Before making this choice, one must separately consider the agreed sentence, the tax debt, the assets already seized, and the documentation available to prove the lawful origin of the assets.
A Useful Step After a Seizure
Acting on precise data is essential. Keep the decree, any execution report, and the documents reconstructing the purchase and origin of the assets involved. If you must face a contestation or seizure for confiscation for disproportion in Milan, you can contact me to examine the prerequisites indicated in the provision and possible defensive initiatives.