Tax offences and the entity’s liability under D.Lgs. 231/2001

Tax offences and the entity’s liability under D.Lgs. 231/2001

Since 24 December 2019 — the date on which Law No. 157 of 19 December 2019, converting Decree-Law No. 124 of 26 October 2019, was published in the Official Gazette — Article 25-quinquiesdecies, paragraph 1, of Legislative Decree No. 231 of 8 June 2001 has included among the predicate offences filing a fraudulent tax return through the use of invoices for non-existent transactions (Art. 2 of Legislative Decree No. 74 of 10 March 2000), filing a fraudulent tax return through other artifices (Art. 3), issuing invoices for non-existent transactions (Art. 8), concealment or destruction of accounting records (Art. 10), and fraudulent evasion of tax payment (Art. 11). The pecuniary sanction reaches five hundred units for Arts. 2, paragraph 1, 3 and 8, paragraph 1, and four hundred units in the other cases; it is increased by one third if the entity has obtained a profit of significant amount (paragraph 2), and is accompanied by the disqualification sanctions under Art. 9, paragraph 2, letters c), d) and e) (paragraph 3).

Paragraph 1-bis, inserted by Art. 5 of Legislative Decree No. 75 of 14 July 2020 and reformulated by Legislative Decree No. 156 of 4 October 2022 (in force from 6 November 2022), extends the entity’s liability to filing an inaccurate tax return (Art. 4), failure to file a tax return (Art. 5) and improper offsetting (Art. 10-quater), but only when the conduct is carried out for the purpose of evading value-added tax within cross-border fraudulent schemes connected to the territory of at least one other European Union Member State, from which an overall loss of ten million euros or more results or may result. Outside this scope, the three offences remain outside the D.Lgs. 231 catalogue.

The thresholds are not uniform. Arts. 2 and 8 of Legislative Decree No. 74 of 10 March 2000 do not set thresholds for criminal liability: the amount affects only the sentencing framework, since if the fictitious liabilities — or the amount not corresponding to the truth stated on the invoice for the tax period — are below 100,000 euros, the penalty is reduced to imprisonment from one year and six months to six years (Arts. 2, paragraph 2-bis, and 8, paragraph 2-bis), with knock-on effects on the units applicable to the entity. Art. 3 (fraudulent tax return through other artifices) is instead punishable only where there is a joint occurrence of tax evaded exceeding 30,000 euros per individual tax and of concealed income items exceeding 5 percent of the declared income items or in any event 1,500,000 euros, or of fictitious credits and withholdings exceeding 5 percent of the tax or in any event 30,000 euros. Art. 11 (fraudulent evasion of tax payment) presupposes taxes, penalties and interest exceeding 50,000 euros, with the penalty increased above 200,000 euros.

Text updated to 8 August 2026.

The safeguard: a 231 organisational model kept up to date for tax risk (a tax control framework, procedures for incoming invoices, supplier selection, handling of anomalies) can relieve the entity of liability.

If charges are brought: preventive seizure, including seizure of equivalent value, may be ordered against the entity’s assets, while payment of the tax debt counts as a mitigating factor or, for some offences, as a ground for exemption from punishment.

The firm combines tax advice with a criminal-tax reading of the facts, working with the criminal defence lawyers of the network, from prevention (the 231 model) through to handling the audit itself.

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