On December 17, 2014 the Law n. 186 of December 15, 2014 entitled "Provisions on emergence and return of capital held illegally abroad as well as for strengthening the fight against tax evasion. Provisions on self-laundering " was published in the Official Gazette.
The Law introduces a procedure in order to settle breaches related to the obligations of fiscal monitoring to which it is possible join up to September 30, 2015, submitting an application to the Inland Revenue. The procedure involves the ability to determine a flat rate taxes payable in the event that the average of the amount outstanding result, at the end of each tax year, less than € 2 million. Whoever breached the obligations indicated in the statement of income from investments or financial assets abroad can adhere to the procedure of voluntary collaboration.
Under the criminal point of view, the Law introduces into our regulatory framework the crime of self-laundering, punished by art. 648 ter.1 of the Italian Criminal Code. By virtue of the clause “apart from cases of complicity in the crime” expressly contained in art. 648 bis, until now the perpetrator of the crime from which the illegal assets derive and whoever had provided a causal contribution - moral or material – in the commission of the crime were not punishable. The exclusion of criminal liability was founded on the basis of the general theory according to which the use of illegal assets by the same subject who has taken part in the crime is not punishable because it is a post-factum. According to this approach, the punishment of those activities carried out by the perpetrator would result in a duplication of the penalties applied to a single fact, in breach of the principle of “ne bis in idem”.
The new provision under art. 648 ter.1 of the Italian Criminal Code provides, in particular, two different types of self-laundering crime:
- the first, punished with imprisonment from 2 to 8 years and a fine of 5,000 to 25,000 Euro, punishes anyone who, committing or accessory to an intentional crime - punished with imprisonment equal to or more than 5 years - employs, replaces, moved, in economic or financial activities, money, goods or other benefits from the crime, so concretely hinder the identification of their criminal origin;
- the second, punished with imprisonment from 1 to 4 years and a fine of 2,500 to 12,500 Euro, is related to the commission of intentional crimes for which is provided for the penalty of imprisonment of less than 5 years.
In the third paragraph there is a special cause of non-punishment in the event that money, goods or other assets are allocated to the mere use or personal enjoyment, while it is provided an aggravating circumstance if the crime is committed in the exercise of banking and financial activities or other professional activity.
It is provided, moreover, the reduction in half of the penalty for those who effectively cooperate to prevent that the conduct is brought to further consequences or to ensure the evidence of the crime and the identification of goods, money and other benefits derived from the crime.
The provisions of this article shall apply even if the perpetrator of the crime from which the money or other utilities derive is not chargeable or is not punishable or in case of failure of a condition of admissibility for the said crime.
The law has also aggravated the penalties applied to crimes of money laundering (art. 648 bis of the Italian Criminal Code) and reinvestment of money and assets of illicit origin (art. 648 ter of Italian Criminal Code) increasing the fine, previously included among 1,032 and 15,493 euro, of an amount ranging from 5,000 to 25,000 Euro.
With reference to the company criminal liability, the new law amended article 25 octies of the Legislative Decree June 8, 2001 n. 231, providing for crime of self-laundering, in addition to crimes of receiving stolen goods, money laundering and reinvestment of money and assets of illicit origin, already listed.
The law comes into force on January 1, 2015, that is from the fifteenth day following the date of publication in the Official Gazette.