In corporate and financial crimes, I want to help you distinguish a management issue from conduct relevant under criminal law. If a doubt arises concerning the financial statements, the use of company resources or tax payments, you may wonder who is responsible for the decisions, how much authority delegations carry and what consequences may affect the business.
I explain the relevant differences between false accounting, bankruptcy and tax offences, and which documents may alter the assessment. The starting point is to separate personal liability, the company’s position and business continuity: these aspects are connected, but they do not coincide and require consistent choices.
False accounting, bankruptcy and tax offences: the differences
For false corporate communications, Article 2621 of the Italian Civil Code requires specific conditions: qualified persons, such as directors or auditors, material falsehoods or omissions in the communications covered by the provision, awareness, the purpose of obtaining an unjust profit and an actual capacity to mislead the recipients. An accounting error is not enough: the content and preparation of the information must be reconstructed. Listed companies and other equivalent entities are subject to the separate regime under Article 2622.
In bankruptcy cases, insolvency alone does not establish the offence. The legislation distinguishes fraudulent conduct, such as diverting assets from the purposes of the business, from forms of simple bankruptcy, which have their own requirements. Irregularities in accounting records may also have different significance depending on the conduct and the required mental element. The insolvency proceedings and the applicable temporal regime are also relevant.
In tax offences, it is necessary to distinguish between returns, invoices and payments. A fraudulent return is not the same as an inaccurate return; an unpaid tax does not necessarily constitute a criminal offence. Depending on the specific offence, the manner of the conduct, the intention required by law, any thresholds and the time when the obligation was due may be relevant. A tax assessment, by itself, does not replace criminal evidence.
The 2024 reform of tax penalties also addressed instalment payments and grounds excluding punishment. I do not infer any automatic consequences from it: a liquidity crisis must be documented, and the effects of payments must be verified in accordance with the applicable conditions and legislation in force at the relevant time.
Personal liability and the company’s position
Criminal liability is personal and is not simply linked to holding office. I would assess actual powers, conduct, knowledge of the facts and any de facto management. A delegation does not automatically exclude all liability, but neither does merely being a member of the board of directors demonstrate participation in an offence: the conduct specifically attributed to the person must be identified.
For certain offences, the entity’s liability under Legislative Decree no. 231/2001 may also arise. In relation to corporate offences, Article 25-ter is relevant; it was also amended by Article 12 of Law no. 69/2015. The company is not automatically liable: the required conditions must be met, including the entity’s interest or advantage and the criteria for attributing liability. The company’s position must therefore be kept distinct from that of the persons involved.
Which documents I would examine to reconstruct the decisions
I would start with any document received and the chronology of responsibilities: appointments, departures, delegations, minutes and reports from the supervisory bodies. These would help establish who could make decisions, what information they had and at what time. A signature on the financial statements and an internal communication reporting an issue have different evidentiary functions and must be read together.
For the financial statements, I would compare schedules, accounting records, valuation criteria and the underlying documents. For asset transfers, I would examine contracts, bank transactions and the actual destination of the resources. On the tax side, returns, receipts, tax communications and payment plans would help distinguish the debt, the alleged conduct and possible remedies. Summaries prepared only after the problem arose might not explain the original decisions.
Defence, regularisation and continuity: choices to be coordinated
If you have received a document, it is first necessary to identify its nature, recipient and allegations: a request for documents is not the same as a precautionary measure. I would then assess the defensive instruments available at that stage of the proceedings. In the meantime, preserving the documentation without altering it makes it possible to reconstruct the facts; backdated corrections or reconstructions presented as original documents may create further problems.
An accounting correction, tax regularisation or regulated process for managing the crisis may pursue different objectives. They do not automatically replace criminal defence. I would assess their requirements and effects, also taking creditors and the company’s assets into account. Business continuity requires sustainable and lawful choices: it does not justify transfers lacking documentable reasons or transactions intended to remove assets from the creditors’ security.
Frequently asked questions
Am I also liable if the financial statements were prepared by an accountant?
Entrusting the matter to an adviser does not automatically transfer the liability of the person who approves or communicates the financial statements. However, it does not prove awareness of a falsehood either. The engagement, the information provided, the reports received and the person’s own conduct in relation to the disputed data are relevant.
Does correcting the financial statements eliminate the possible offence?
The correction does not automatically erase conduct that has already taken place. It may be relevant to reconstructing the facts and assessing the consequences, but it is necessary to establish which communications were disseminated, when and with what degree of awareness. The correction must be transparent and documented, not backdated.
Does a tax debt always lead to criminal proceedings?
No: a tax debt and a criminal offence are distinct. For a criminal offence to arise, the elements of the specific offence must be present, including any thresholds and conditions. The amount must also be reconstructed correctly: the total claimed in tax proceedings does not necessarily correspond to the amount relevant under criminal law.
Does paying the taxes exclude criminal liability?
Payment may have favourable effects, but it does not always guarantee that punishment will be excluded. The effects vary according to the offence, the completeness and timing of payment, the statutory conditions and the applicable legislation. An instalment plan does not necessarily amount to extinction of the debt and does not produce the same consequences for every offence.
Can I continue operating during criminal proceedings?
The existence of proceedings does not, by itself, require the company to close. However, any seizures, other measures and the financial situation may affect operations. I would separately assess the restrictions imposed by the documents and the sustainability of business decisions, without treating continuation of the business as a reason to unlawfully prejudice creditors.