Tax crimes: partial constitutional illegitimacy of art. 10-bis of Legislative Decree 74/2000

The Constitutional Court has declared constitutionally illegitimate, for violation of articles 25, second paragraph, 76 and 77, first paragraph, of the Constitution, the art. 7, paragraph 1, lett. b, of Legislative Decree no. 158 of 2015, in the part in which he inserted the words "due on the basis of the same declaration or" in the text of art. 10-bis of Legislative Decree no. 74 of 2000, and the same art. 10-bis limited to the words "due on the basis of the same declaration or".

The Court recalled that in criminal matters the delegating legislator must adopt directive criteria and principles configured in a very precise way, both by defining the type and maximum extent of the penalties, and by dictating the criterion, in itself restrictive, of recourse to the criminal sanction only for the protection of certain relevant interests. In this matter, the degree of precision required for the rules established in the enabling law is higher since - since Parliament is responsible for identifying the facts to be subjected to punishment and the sanctions applicable to them - the control of compliance with the directive principles and criteria by of the Government is also an instrument of guarantee of the law reserve and of the observance of the principle of strict legality. (Previous: S. 174/2021 - max. 44205; S. 127/2017 - max. 41586; S. 5/2014; S. 49/1999 - max. 24473; S. 53/1997; O. 134/2003 - max. 27715).

The legislative delegation implies a discretion of the delegated legislator, more or less wide in relation to the degree of specificity of the principles and directive criteria determined in the enabling law, also taking into account its rationale and the purpose pursued by the latter. (Previous: S. 142/2020 - max. 43518; S. 96/2020 - max. 43352; S. 10/2018 - max. 39716).

The decision of the delegated legislator to identify in the omitted payment of withholding taxes due on the basis of the declaration of the substitute - previously an administrative tax offense - a new and distinct criminal case which joins the omitted payment of withholdings resulting from the certifications issued to the substitutes, does not it is supported by the principles and directive criteria of the delegation, while a precise and defined criterion would have been necessary for the purpose of respecting the principle of strict legality in criminal matters.

Restored the regime in force before Legislative Decree no. 158 of 2015 - so that the integration of the criminal case requires that the non-payment by the substitute concerns the certified withholdings -, in consideration of the recent development of civil jurisprudence, it is up to the legislator to review this overall sanctioning regime to make it more functional and coherent.