ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
3.5 Tax Evasion and Financial Reporting Tax crimes are governed by Legislative Decree No 74/2000 (the “Tax Crimes Act”). The main offences are as follows. • Fraudulent tax return by use of false invoices (Article 2): imprisonment from four to eight years (reduced to one year and six months to six years where fictitious deductions are below EUR100,000). • Fraudulent tax return by other deceptive means (Article 3): punishable only where the tax evaded exceeds EUR30,000 and undisclosed income exceeds 5% of that declared or EUR1,500,000 – imprisonment from three to eight years. • False tax return (Article 4): where the tax evaded exceeds EUR100,000 and undisclosed elements exceed 10% of those declared or EUR2 million – imprisonment from two years to four years and six months. • Failure to file a tax return (Article 5): where the tax evaded exceeds EUR50,000 – imprisonment from two to five years. • Issuance of false invoices (Article 8): no minimum threshold – imprisonment from four to eight years (reduced to one year and six months to six years where the amount does not exceed EUR100,000). • Concealment or destruction of accounting records (Article 10): imprisonment from three to seven years. • Fraudulent concealment of assets to defeat tax collection (Article 11): where the total amount exceeds EUR50,000 – imprisonment from six months to four years (aggravated to one to six years where it exceeds EUR200,000). Italy does not have a standalone corporate offence of failure to prevent tax evasion equivalent to that under the UK Criminal Finances Act 2017. However, Decree 231 achieves a comparable outcome: a company incurs corporate criminal liability where the tax offenc - es listed as predicate offences under Decree 231 are committed, in the company’s interest or to its advan - tage, by individuals acting on its behalf, provided that such offences were made possible by the absence or inadequacy of the company’s organisational model.
3.6 Cartels and Anti-Competitive Offences Italy only provides for administrative penalties to punish cartel and other competition law violations. Under Law No 287/1990, the Italian antitrust author - ity ( Autorità Garante della Concorrenza e del Mercato ; AGCM) is empowered to investigate and punish anti- competitive conduct such as agreements restricting competition, abuses of dominant position and unlaw - ful concentrations. The AGCM may impose fines of up to 10% of the undertaking’s worldwide turnover, order the cessation of the infringement and accept binding commitments. Failure to comply with AGCM decisions or to provide requested information may result in fur - ther administrative sanctions. However, certain conduct related to competition law infringements may give rise to criminal liability. In particular, bid rigging in public procurement may constitute a criminal offence under Articles 353 and 353-bis ICC, carrying custodial sentences. Article 513 ICC may also apply to interference with free market competition through violence against property or fraudulent means. 3.7 Counterfeiting Italian law provides a comprehensive framework of criminal offences relating to counterfeiting and IP vio - lations. The main offences set out in the ICC include: • counterfeiting or use of trade marks, distinctive signs, patents, industrial designs or models (Article 473 ICC) – fines and imprisonment from six months to four years, depending on the counterfeited item; • introduction and commercialisation of products bearing false trade marks or distinctive signs (Arti - cle 474 ICC) – fines and imprisonment from one to four years; • sale of products with misleading names, trade marks and distinctive signs (Article 517 ICC) – fines and imprisonment up to two years; • manufacturing and commercialisation of goods usurping industrial property rights (Article 517-ter ICC) – fines and imprisonment up to two years; and • counterfeiting of geographical indications and des - ignations of origin (Article 517-quater ICC) – fines and imprisonment up to two years;
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