The Use of Trusts and the Risks of Fraudulent Evasion of Taxes
The establishment of a trust is a legitimate and often fundamental legal tool for estate planning, the protection of vulnerable individuals, or generational transfer. However, when this complex operation intersects with outstanding debts to the Treasury, the line between legitimate asset protection and criminal offense can become extremely thin. As a criminal lawyer in Milan, Avv. Marco Bianucci frequently encounters how the Revenue Agency and the Financial Police view the creation of trusts in the presence of substantial tax debts with extreme suspicion, and often contest it.
The crime of fraudulent evasion of taxes, provided for by Article 11 of Legislative Decree 74/2000, punishes anyone who, in order to evade payment of income or value-added taxes, simulates the alienation or carries out other fraudulent acts on their assets that are capable of rendering the compulsory collection procedure wholly or partially ineffective. Jurisprudence has now consolidated the orientation according to which the transfer of assets into a trust, especially if structured fictitiously, can fully constitute this crime if the main intent is to deplete the assets that can be seized by the tax authorities.
When a Trust Becomes an Evasive Tool
A criminal charge does not arise from the mere fact of having established a trust, but is based on a rigorous analysis of its potentially fraudulent nature. Investigators focus their attention on the actual divestment of assets by the settlor. If the settlor effectively maintains full control and availability of the assets transferred to the trust fund, perhaps even holding the role of trustee in a self-declared trust without real limitations or controls, the legal transaction is considered merely simulated.
In these scenarios, the establishment act is interpreted not as a real and definitive segregation of assets in favor of third-party beneficiaries, but as an artificial screen erected solely to paralyze the enforcement actions of the financial administration. Promptly understanding these risk profiles is essential to avoid severe criminal consequences, which can translate into invasive investigations, complex trials, and, ultimately, preventive seizure aimed at confiscating the transferred assets.
The Approach of the Bianucci Law Firm to Tax Criminal Defense
Facing an accusation for tax crimes of this nature requires cross-disciplinary expertise that combines a deep knowledge of criminal procedure with the dynamics of civil and tax law. The approach of Avv. Marco Bianucci, an expert lawyer in criminal law in Milan, focuses on a meticulous, technical, and documentary analysis of the entire asset operation. The Bianucci Law Firm does not limit itself to contesting the accusation in a general manner but works to reconstruct the genuineness of the motivations underlying the establishment of the trust.
The defense strategy aims to demonstrate, where the prerequisites exist, the absence of specific intent to evade. The objective is to prove that the trust was established for legitimate, real, and legally protected purposes, and not with the exclusive aim of defrauding the Treasury. Furthermore, the actual suitability of the act to render collection ineffective is carefully evaluated: if the settlor's remaining assets were anyway sufficient to cover the tax debt at the time of the act, an essential objective element for the commission of the crime is lacking.
Frequently Asked Questions
What are the criminal risks if my trust is deemed fictitious by the Revenue Agency?
If the transfer of assets into the trust is judged to be a fraudulent act aimed at evading taxes exceeding the threshold of fifty thousand euros, one risks formal indictment for fraudulent evasion of taxes. The penalties provided by the law include imprisonment from six months to four years, a penalty that is increased if the amount of evaded taxes exceeds two hundred thousand euros. There is also a concrete risk of asset seizure and subsequent confiscation.
Does having debts with the tax authorities absolutely prevent the creation of a trust?
No, the existence of tax debts does not represent an absolute regulatory prohibition on establishing a trust or carrying out other disposal acts. However, it serves as a strong warning sign for investigative bodies. It is of fundamental importance that the establishment of the trust is supported by solid, valid, and verifiable economic, business, or family reasons, and that it is not merely a tool to withdraw guarantees from creditors, including the State.
How can the defense demonstrate that a trust is not tax fraud?
The defense is based on demonstrating the actual divestment of assets and the genuineness of the trust's purpose. It is necessary to prove documentarily and factually that the trustee operates with real autonomy, following the strict rules set out in the establishment act, and that the settlor has not retained powers of interference such as to render the asset segregation meaningless. The reconstruction of the chronology of events and the real intentions of the parties is the core of this delicate defense activity.
Protect Your Position with Strategic Criminal Defense
Contestations in the area of tax criminal law require timely, strategic, and highly qualified defensive intervention. Facing investigations for fraudulent evasion of taxes without a clear and well-considered defense strategy can irreparably compromise personal and business assets, in addition to entailing serious risks to personal liberty.
If you are under investigation or wish to carefully evaluate the criminal risk profiles related to complex asset operations, contact the Bianucci Law Firm. Avv. Marco Bianucci will receive you at the Milan office, located at Via Alberto da Giussano 26, to analyze the documentation in detail, listen to your situation, and outline the most appropriate defense path to protect your rights and interests.