The management of a company involves responsibilities that go far beyond simple economic administration. For directors, legal representatives, and, in some cases, shareholders, there is a concrete risk of incurring not only administrative but also criminal sanctions if tax crimes are alleged. As a criminal lawyer in Milan, Avv. Marco Bianucci daily observes how many entrepreneurs underestimate the implications of Legislative Decree 74/2000, finding themselves unprepared when faced with accusations of tax evasion, non-payment, or fraudulent declarations. Understanding the scope of one's responsibility is the first step towards building an effective defense and protecting personal freedom and assets.
The Regulatory Framework: When a Director is Criminally Liable
The Italian legal system provides that criminal liability is personal. However, in the context of corporate crimes, the law attributes to the legal representative responsibility for tax offenses committed in the interest or to the advantage of the entity. This means that the director (de jure or de facto) is the first person the Judicial Authority looks to in case of serious tax irregularities. The most common offenses include fraudulent declaration through the use of invoices for non-existent transactions, omitted declaration, issuance of false invoices, and non-payment of VAT or certified withholdings above the legal thresholds for punishability.
It is crucial to clarify that not every tax error constitutes a crime. The law often requires the presence of specific intent, meaning the knowledge and will to evade taxes. However, case law often tends to presume the director's knowledge of the tax management, making the burden of proof for the defense particularly heavy. Furthermore, legal instruments such as preventive seizure of equivalent value can freeze the director's personal assets even before a final conviction, making the situation critical from the preliminary stages of the investigation.
The Approach of Studio Legale Bianucci in Tax Criminal Defense
When faced with accusations of this nature, the approach of Avv. Marco Bianucci, an expert lawyer in corporate criminal law in Milan, focuses on a meticulous analysis of the corporate structure and decision-making flows. The defense is not limited to mere formal contestation but delves into the merits of business management to identify the actual perpetrator of the illicit conduct or the absence of the subjective element of the crime (intent).
One of the key defense strategies used by the firm concerns the verification of the delegation of functions. In fact, accounting and tax management are often delegated to third parties or specific executives. Avv. Marco Bianucci works to demonstrate, where possible, that the director acted in good faith or that responsibility for the offense falls on delegated individuals with decision-making and spending autonomy. Furthermore, the firm collaborates with tax technical consultants to analyze accounting documentation and verify the exceeding of punishability thresholds or the correctness of the Revenue Agency's calculations, offering comprehensive protection that integrates legal and technical expertise.
Frequently Asked Questions
Is the director liable even if they relied on an accountant?
Yes, in principle, relying on an accountant does not automatically exempt the director from criminal liability. Case law holds that the director has a duty of supervision (culpa in vigilando) over the actions of external professionals. However, a careful defense can aim to demonstrate the director's absolute good faith and the professional's misleading of the director, an element that could exclude the intent necessary for a criminal conviction.
What are the risks for a de facto director or a nominee?
The law equates a de facto director with a de jure director. Those who effectively manage the company, even if not appearing in company records, are criminally liable for tax crimes committed. Even the so-called nominee is not exempt from risks: although they often have a marginal role, they can be held liable for complicity in the crime if they were aware of the illicit purposes of the company's management, or for failing to carry out the controls due to their formal position.
What is seizure of equivalent value and when is it applied?
Seizure of equivalent value is a precautionary measure that allows the State to freeze the director's assets (bank accounts, real estate, cars) for an amount equivalent to the evaded tax, when the company's assets cannot be directly seized. This instrument is frequently used in tax crimes to ensure the recovery of tax credit. Prompt legal intervention is crucial to verify the lawfulness of the seizure and attempt to obtain its release or reduction.
Do criminal sanctions apply even if the company goes bankrupt?
The bankruptcy of the company does not extinguish the tax crime. On the contrary, bankruptcy proceedings often reveal past tax irregularities that lead to criminal charges for the director, which may be compounded by bankruptcy offenses. In these complex scenarios, a defense strategy that coordinates criminal aspects with those of bankruptcy proceedings is essential.
Request a Legal Consultation
If you are a director and fear being involved in proceedings for tax crimes, or if you have received a notice of investigation, it is imperative to act promptly. Avv. Marco Bianucci offers his expertise to analyze your position and define the best defense strategy. Contact the firm in Milan to schedule an appointment and protect your rights.