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Jacob Semark - One of the best experts on this subject based on the ideXlab platform.

  • Kombinationen av skattetillägg och skattebrott - En analys av konsekvenserna efter Högsta domstolens juni- och juliavgöranden samt en analys av ett nytt lagförslag
    2020
    Co-Authors: Jacob Semark
    Abstract:

    A court ruling came through the Swedish Supreme Court to declare that the ne bis in idem principle prevents various processes for Tax surcharges and prosecution for Tax offenses due to the same acts of providing false information in an income Tax return (the June ruling). A later ruling prohibits the two sanctions and it has been applied retroactively since 10th February 2009 (the July ruling). The purpose of this study is to investigate the cause and consequences of the June and July rulings from 2013. It also aims to analyze a bill for the coordination of Tax surcharges and prosecution for Tax offenses in court. This study finds that the individual who have served an imprisonment due to a Tax offence after an imposition of Tax surcharge can obtain indemnity under a special act (frihetsberovandelagen). In other cases, the claim for damages must be based on ordinary tort Law. A public inquiry has submitted a report that a new Law is proposed for the imposition of Tax surcharges in the general courts when the constituent elements for Tax offence are fulfilled simultaneously. Consequently, the proposed coordination of the sanctions should not conflict the principle of ne bis in idem. The result of my analysis, concerning the proposed legislation, is a suggestion on higher requirements for crime reports so merely the most serious Tax crimes are prosecuted by the national Tax legislation. To create uniformity with the imposition of Tax surcharges in general administrative courts of appeal, the general court of appeal should not either be able to establish requirements for hearing the case regarding the Tax surcharge. My assessment is that the proposal will not be implemented. The reason is that the application will be too complex because it means that the Taxation issue is still to be decided in an administrative court. The individual may still have to run two parallel processes, one for the Taxation issue in general administrative court and one for the Tax surcharge combined with Tax offense in general court. Another result is that the suspect may be acquitted for the prosecution but still charged Tax surcharges because the standard of proof is lower and has no subjective element such as intent or negligence. According to my analysis, the alternative system could be preferable where the authority chooses whether the providing of false information must be sanctioned with Tax surcharges or public prosecution. However, a disadvantage with the alternative system is when a dismissed indictment prevents further imposition of Tax surcharges because then the suspect is freed from sanction in accordance with the ne bis in idem principle. In my view, the introduction of a "Tax find" in the Criminal Tax Law could therefore be a solution to replace the Tax surcharges.

Mario Romano - One of the best experts on this subject based on the ideXlab platform.

  • Materia economica e intervento penale
    2020
    Co-Authors: Mario Romano
    Abstract:

    Italian Criminal Law has undergone important reforms over the last ten years. Tax Law, bankruptcy Law as well as corporate Law have been thoroughly amended, so that their relationship with Criminal Law is now significantly different from what it used to be up to the recent past. As a result, the task Italian Criminal Lawyers are now facing i.e. to build the scattered, piecemeal solutions brought about by this wave of new legislation into a coherent system, is a difficult one. While the reform of Criminal Tax Law, which was adopted in 2000, deserves appreciation, the one which affected corporate Criminal Law in 2002 pose serious problems as to its consistency with the economic and legal system of a modern democracy. The changes made to bankruptcy Law in 2005 and 2006 are also perplexing, since they have modified only the titles concerning corporate Law aspects leaving untouched the Criminal sanctions. At present, the distinctive feature of Italian Criminal Law of corporation seems to be the lack of homogeneity between its various parts, , thus making global reform proposals both necessary and desirable in order to achieve a satisfactory level of guarantees for stakeholders and citizens at large.

Enrico Crivellin - One of the best experts on this subject based on the ideXlab platform.

  • I REATI TRIBUTARI TRA VECCHIE E NUOVE ISTANZE PREVENTIVE
    2013
    Co-Authors: Enrico Crivellin
    Abstract:

    This work analyzes the Italian Tax offences’ system, regulated by d.lgs. n. 74/2000, and underlines how the urgent need for "fiscal security" has influenced the most recent legislative and court decisions involving Criminal Tax matters. It is generally known, how the negative value of economic crimes – and consequently of fiscal crimes – is not fully perceived by citizens, because those kinds of infringements are considered as events far away from their individual needs. For this reason they are not fully highlighted by the medias which are more interested in pursuing other areas of judicial chronicle. For this reason, Criminal Law of economics – historically characterized by a certain degree of specialty area to the general rules laid down by the penal code – saw sectoral reforms, sometimes ending up to real forms of deCriminalization, which are not justified given the importance of the legal protected asset. Criminal Tax Law, in an apparent alienation from other areas of Criminal Law, had the uneasy task to protect Tax interests, after abandoning the offences repression logic of the Tax evasion in the previous Law n. 516/1982. Legislative power, in accordance with doctrine, had decided to split Tax evasion in two main categories: 1) the so-called "great evasion", mainly considered in Criminal cases contained in d.lgs. n. 74, regards unLawful conduct, in particular detrimental Tax interests; 2) the so-called "small and medium evasion" on Tax discipline breaches subject to administrative sanctions. Although decreasing Tax income, this kind of evasion would not be detrimental to public finances as Criminal Tax evasion would be. However this elaborate system – certainly in conformity with the General principles – doesn't seem to have reached the desired results. The current unfavourable economic environment has highlighted the limits of Tax legislation and, consequently, of its related sanctions, despite the innovations that have improved the efficiency of financial Administration. Therefore, in an attempt to fight Tax evasion there has been a dual outcome: a) on one hand, jurisprudence has extensively interpreted Criminal Law, getting to use in some cases the analogy in malam partem of penal precept; b) on the other hand, legislators have recently intervened by modifying the original structure of the above cited decree n. 74, setting new cases and heavier sanctions. These initiatives although sharable in their goal, raise doubts in the doctrine. The aim of this writing is to illustrate the evolution of Criminal Tax matters, with a particular focus on how the legislative power and the jurisprudence have reformulated, in terms of penalties, some of the institutes and cases contained in d.lgs. n. 74/2000.