Smuggling and Import VAT: The Court of Cassation Clarifies the Permanent Nature of the Offence (Judgment No. 9420/2024)

Tax and customs criminal law is a constantly evolving field, where jurisprudence plays a fundamental role in defining the boundaries of illicit conduct. A recent ruling by the Court of Cassation, Judgment No. 9420 of 29 October 2024 (filed on 7 March 2025), fits into this context, offering essential clarifications on the nature of the crime of evasion of import VAT. This decision, issued by the Third Criminal Section with President G. A. and Rapporteur G. G., concerns a specific case that saw A. G. U. as the defendant and addressed the issue of the permanence of the offence, with significant implications for the application of the law.

The ruling under examination focuses on the crime of customs smuggling, with particular reference to the evasion of import VAT. This is a highly topical issue, given the importance of import-export operations in the economic fabric and the consequent need for effective protection of fiscal interests. The Court was called upon to rule on the legal nature of this crime, i.e., whether it should be classified as an instantaneous or permanent offence, and to identify the exact moment when the illicit conduct ceases to produce its effects.

The Permanent Nature of the Crime of Import VAT Evasion

The core of the issue addressed by the Supreme Court concerns the classification of the crime of import VAT evasion as a permanent offence. An offence is defined as permanent when the unlawful conduct continues over time, keeping alive the violation of the legal interest protected by the norm. Unlike instantaneous offences, which are consummated at a single moment, permanent offences continue to produce their effects until the perpetrator ceases the conduct or an external event interrupts it.

The judgment in question reaffirmed an already established principle, but did so with a specificity that deserves attention. The main regulatory reference is Article 78 of Legislative Decree of 26 September 2024, No. 141, which governs customs offences. The Court of Cassation carefully examined this provision, reaching a clear and peremptory conclusion, summarised in the following maxim:

In matters of customs smuggling, the crime of evasion of import VAT, referred to in Article 78 of Legislative Decree of 26 September 2024, No. 141, is permanent in nature, as its consummation is exhausted at the moment when the activity aimed at allowing the illicit circulation of goods within the State ceases without payment of the tax obligation. (Case relating to the violation of the obligation to pay border duties and the obligation to nationalise an aircraft, in which the Court held that the offence is permanent even if, by not exceeding the foreseen penalty threshold, it constitutes a mere administrative violation, which persists until the regularization of the asset).

This maxim is of fundamental importance because it clarifies two crucial aspects. Firstly, it reiterates the permanent nature of the offence, which means that the illicit act is not exhausted by the mere importation of goods without paying VAT, but continues as long as the goods circulate illicitly within the national territory. Secondly, and this is the most innovative element, the Court specifies that the consummation of the offence ceases at the moment when "the activity aimed at allowing the illicit circulation of goods ceases". This implies that the illicit act persists until the regularization of the asset, even when the conduct, due to its extent, would constitute a mere administrative violation.

Practical Implications and Jurisprudential Precedent

The classification of an offence as permanent has significant consequences, particularly regarding the start of the statute of limitations. If the offence is permanent, the statute of limitations begins to run only from the moment the permanence ceases, i.e., in this case, from the regularization of the asset's status or the cessation of illicit circulation. This extends the period within which criminal action can be brought, offering authorities more time to prosecute illicit conduct.

The specific case that led to this ruling concerned the violation of the obligation to pay border duties and the obligation to nationalise an aircraft. This scenario perfectly exemplifies how the illicit act can persist over time, requiring active intervention for its cessation. The Court thus reinforced the orientation already expressed in previous decisions (such as Judgment No. 56264 of 2017 and No. 19233 of 2019), consolidating the interpretation on the permanence of customs offences related to import VAT.

In summary, the key elements of this judgment are:

• The permanent nature of the crime of import VAT evasion.
• The cessation of consummation which coincides with the end of the illicit circulation of goods.
• The importance of the regularization of the asset as the final moment of the illicit act, even for administrative violations.

Conclusions

Judgment No. 9420 of 2024 by the Court of Cassation represents an important reference point for all those operating in the field of tax and customs criminal law. It reiterates the firm position of jurisprudence on the permanent nature of the crime of import VAT evasion, emphasizing the importance of complete regularization of debt and administrative positions to end the illicit conduct. This ruling requires greater attention and proactivity from economic operators and sector professionals, who must be aware of the temporal implications of such offences. Fully understanding these dynamics is essential to prevent sanctions and ensure compliance with current regulations, protecting both the company and the individuals involved.