A limited liability company is managed by a Board of Directors. This Board consists of three directors: A, the Managing Director and Legal Representative of the Company, B, the Managing Director and C, a Director with no power of delegation. Even in the event that he has been delegated to do so, the Managing Director B cannot deal with accounting, since he does not have competencies in this field. None of them files the corporate income tax return within the time-limit provided by the law. Investigating authorities serve a notice ex Art. 415 of The Code of Criminal Procedure on B alleging him/her of omitted filing ex Article 5 of Legislative Decree No 74/2000.
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The crime is considered committed “upon non-filing of income tax return or value added tax by the person in charge of it”. Yet, according to Article 5 of the Legislative Decree No 74/200, only the person legally required to file the income tax return is allegeable for this crime. and it was not B who was legally required to do so, but the Company’s Legal Representative, that is to say A. “The filing of income tax return of subjects different from natural persons must be subscribed, on pain of nullity, by the Legal Representative of the company”(Art. 1 of the Decree of the President of the Republic No 322 of 22 of July 1998); ” The requirement of filing the income tax return must be fulfilled by the taxpayer in question, and, for what it is concerned with legal persons, by their Legal Representative, who must sign it on pain of nullity ” (Cassazione Penale, Sec. III, 18.6. 2015 No. 37856, freely available from www.iusexplorer.it.). It is not possible to consider B liable ex Article 40, paragraph II of The Criminal Code and Article 2381 and 2392 of The Civil Code. The first article of The Civil Code prescribes that Board Directors must act consciously, the latter instead provides that they must fulfil their duties with the diligence required by the nature of the duty and their specific competence. B cannot be held criminally liable for the breach of the duty to monitor ex Article 2392, paragraph II of The Criminal Code ¹: “the reform […] introduced by The Decree-Law No 6/2003 […] removed the duty to monitor on the overall performance of the company’s business management [for which are liable directors without or with partial delegation]“; “still, in case a Company’s Director, being aware of offences while they were caused […] that were prejudicial to the company, did not do everything within his power to prevent them from happening, it is possible to invoke Article 40, paragraph II of The Criminal Code. For what it is concerned with the above mentioned case, B could not be aware that a crime – non-filing of income tax return – was being committed, since this is an instantaneous crime of omission, that is considered committed only upon omission. Not only did B not have knowledge of accountability, but he was also not competent in this field, therefore he could not have been entrusted with any task related to it. The above mentioned scheme of power of delegation is clear: B could not substitute in anyway the person in charge of filing the income tax return.
In the light of the aforesaid arguments, the defence lawyer shall by all means insist on the non-criminal liability of Director B. In fact, he could not safeguard the legal interest in question, since he was not in charge of filing the income tax return and was not entrusted with any task concerning accountability.
¹ According to which “Subject to provisions of paragraph three of Article 238, directors are jointly and severally liable if, being aware of prejudicial facts, they have not done everything that was in their power to avoid them or to mitigate their harmful consequences“.