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Issue 7-8/2019

Abstract. In 2015, legislature intervened with a major reform of the tax avoidance regime, which was accompanied by a rethinking of the nature of the criminal offences declared in Italian Legislative Decree 74/2000. The stated objectives of the reform were to overcome the uncertainty of implementing the tax avoidance system and to reorganise the penalty system in such a way as to improve its effectiveness, proportionality and certainty. In this work, the authors question the achievement, less than four years after the entry into force of the reform, of these objectives. They retrace the regulatory steps and the main jurisprudential arrests that have helped shape the category of tax avoidance until the 2015 reform and, therefore, analyse the first pronouncements, relevant and lawful, that applied the reform. At the end of this process, the authors express an overall positive opinion regarding the ability of the new rules to give rationality and greater certainty to the penal-tax system, but also point out that the “value” shall not so much be attributed to the provisions referred to in paragraph 13 of the new Article 10 bis Taxpayer’s Charter, according to which the elusive operations “do not give rise to acts which are punishable under tax criminal law”, but rather to the reconstruction of offences declared in Italian Legislative Decree 74/2000. It is, in fact, through the redefinition of the area of covered by the illegal crimes referred to in Articles 3 and 4 of Italian Legislative Decree 74/2000 – the authors claim – that today the interpreter can draw a sufficiently secure boundary between evasive behaviour – illegal – and mere avoidance – which has been removed from criminal law as it no longer includes any incriminating law, even before the operation of specific clauses that exclude punishability.

This article was submitted anonymously for evaluation by two experts, with a positive outcome.


SUMMARY: 1. Introduction. – 2. The development of the institution of abuse of rights in tax matters. Notes. – 3. The criminal significance of tax avoidance in law prior to the 2015 reform. – 3.1. The “Dolce and Gabbana” case. – 3.2. The “Mythos” case. – 4. The 2015 reform. – 5. Post-reform criminal law. – 5.1. The first ruling of the Supreme Court after the introduction of Article 10 bis: the case of the stock lending agreement. – 5.2. The law following the entry into force of the amendments to Italian Legislative Decree N. 74/2000: Cass., Section III, no. 48293 of 20 April 2016: – 5.3. Cass., Section III, no. 38016 of 21 April 2017: the difficult classification of the unlawful “diminishing variation” in the same way as the reformed Article 4, Italian Legislative Decree 74/2000. – 6. Some reflections.


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