Another category of criminal offence that International Lawyers Associates works on and assists with is that of corporate crimes. We would like to emphasize that corporate crimes are included in the list of crimes that in the presence of a few conditions may cause criminal and administrative liability of the company/corporation.
Another formal aspect that should be pointed out is that these offences are not included in the Penal Code nor in a special law, but in the corpus of private law, namely the civil code, to regulate key aspects of the legal person.
This type of offence is considered very serious, to the point that it is brought forth to a multi-member court for sentencing.
With regards the first set of crimes, we’re dealing with the false corporate reporting, as identified in the display of documents that are not real or true to the original ones and this means omission of communication, information on the economic situation, assets or financial position of the company or of the group, making the recipients guilty, when the agents (CEOs , managers, auditors, liquidators) work in order to deceive members or the public to get illegal profits for themselves or others.
Crimes that can be committed only by the administrators is another category of offence, such as:
- the unlawful return of capital to shareholders;
- illegal distribution of profit and reserves;
- illegal transactions involving shares or quotas in the company or parent company;
- share capital reductions or mergers or demergers in violation of the law protecting creditors (to the detriment of creditors).
Breach of trust offence is committed by administrators, managers and liquidators that, according to their own personal conflict of interest, aim to obtain unlawful profits or other benefits and therefore are guilty of acts of disposition of corporate assets, volontarily causing financial damage to the company.
Another crime committed is to influence the board of directors in order to reach the majority by lying or with the use of unfair actions which are intended to procure for themselves or others an unjust profit: this is the crime of illegal influence on the board.
The manipulation which consists in spreading false news or becoming key players of false operations or other stratagems likely to produce some alteration of unlisted financial tools is a dangerous offence, which could have a major impact on public investors.
The lawyers of International Lawyers Associates have repeatedly stressed to numerous executives to client companies that when we’re dealing with tax crimes, bankruptcy and corporate crimes the same category of offence is never referred to, but to offences that are different from each other and with different purposes.
Tax offences are regulated by a special extra civil code law.
The offence regarding taxes can also represent, in addition to an administrative-tax offence, also a criminal offence. Despite this, not all irregularities or offences lead to a criminal court, but the field is narrowed to those facts that can be linked to specific offences. For this reason, the lawyers and tax experts of International Lawyers Associates insist on the necessity of preventive fiscal audits, and carry out the entrepreneur’s activities day after day, with a group of assistant accountants and auditors who tend to rectify the errors of entrepreneurial management. Our lawyers can suggest alternative fiscal strategies.
The attention of the criminal Legislator mainly focuses on punishing those who have provided false and incomplete statements for the payment of taxes.
To this regard, there are offences tied to statements: fraudulent statement with the use of invoices or other documents for invented operations. A serious offence, and quite a dangerous one, which can condemn the taxpayer that submits an annual return (for income tax or VAT purposes) by using invoices or other documents created for nonexistent operations, with the aim of lowering the taxable income and thus the tax payment.
For it to be considered a crime, the statements have to be false, and therefore based on documents without any basis and issued only to lower the taxable income or even VAT.
The invented operations may be those that regard an objective nothingness, or rather operations that are not actually carried out (absolute objective nonexistence or false invoicing) or partially implemented (relative objective nonexistence quantitative overbilling) or still, operations that refer to different subjects from actual ones (subjective nonexistence).
Then there is the offence of issuing bills or other documents for nonexistent operations, where the person issuing the fake invoices or documents for nonexistent operations is punished. This is carried out also to allow third parties, with the use of the documents in question – to evade taxes (the specific intent must be ascertained, in other words the actual intent to evade taxes must be verified). In this case, even if the person or “recipient” who did not use the false invoice or document for the “false” statement is punished.
The fraudulent statement with the use of other devices is another crime that falls in to the fraudulent statements offence.
This is a crime that only those who handle compulsory accounting books/logs can do. The most common cases are: assigning bank accounts to a figurehead or family member, illegal accounts, the management of off-balance sheet funds, the fictitious ownership of assets. These behaviors are considered criminal offences when they are handled by tax return and VAT specialists that use them.
In severe cases where the accounting logs are not regular then the person or company can be accused with the crime of concealment or destruction of accounting records/logs.
Only a partial destruction is needed, hindering the reconstruction of financial situation, in order for it to be considered a crime. Then there are different instances that regard the non-payment of certified deductions, condemnable as an offence only for an amount exceeding Euro 50,000 or non-payment of VAT.
A further offence is the fraudulent misappropriation to pay taxes, in other words when the taxpayer carries out certain actions that make the compulsory recovery procedure ineffective, as in the case of a simulated sale to a third party.