Tax crimes: the 770 tax model is not enough to prove the issue of certifications to tax substitutes

The Court of Cassazione, in light of ruling no. 175/2022 of the Constitutional Court stated that the crime of failure to pay social security withholdings referred to in art. 10 bis, Legislative Decree no. 74/2000 cannot be said to have been finalized solely on the basis of the content of form 770, as proof of the issuing of certifications attesting the withholdings made by the employer as withholding tax to those replaced is required.

In fact, the crime referred to in art. 10 bis, Legislative Decree no. 74/2000 presents an omission component, consisting in the failure to pay the withholdings made within the legal deadline, but also a commissive component, given by the payment of the salary with the carrying out of the withholdings and the issuing of certifications to those replaced, before the expiry of the deadline for submitting the tax withholding declaration.

Having said this, the Italian Supreme Court found that the Territorial Court would have erroneously endorsed the reasoning according to which the tax certificates would have been issued to those replaced as a result of the 770 forms signed and communicated to the Revenue Agency only, as well as the CUDs acquired in deeds .

However, proof of the issuing of certifications to those replaced is incumbent on the accusation, as it is a constitutive element of the crime that cannot be deduced only from the presentation of form 770.