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Self-laundering crime and tax crimes


On January 1, 2015 came into force the Law n. 186/2014, which introduced into our regulatory framework the self-laundering crime, pursuant to article 648 ter.1 of the Italian Penal Code, applying to the new crime the operating range of confiscation for equivalent and the administrative liability of entities pursuant to the Legislative Decree no. 231/2001.

The provision, clearly drawn up for the "strengthening of the fight against tax evasion", reflects the Legislator’s purpose to frustrate the economic effects of the crime which money, assets or benefits derive from (that is the recycling), as well as to counter the unlawful conduct carried out by the interposition of a legal entity.

With reference to the administrative liability of the entities, the effects of the regulatory action are devastating.

The introduction of the self-laundering crime in the article 25-octies of the Legislative Decree no. 231/2001 involves the extension of the administrative liability to those entities whose employees (apical and not), after having committed or participated in committing an intentional crime, employ, replace, transfer in financial, entrepreneurial or speculative activities, money, assets or other benefits derived from the (previous) commission of the crime, in order to concretely hinder the identification of the criminal origin.

Therefore, in case of re-employ within a business activity of the illicit gains of the crimes committed by the entrepreneur in its interest or to its advantage, the Company may be held liable, pursuant to art. 25 - octies of the Legislative Decree no. 231/2001.

In terms of penalties, besides the financial penalties against the company held liable it could be add the risk, more serious, of disqualification sanctions affecting the activity of the company.

The new regulatory action, therefore, has a marked influence on models of organization of the entities and it needs their timely update, that should consider not only the self-laundering crime, but also and above all the "source" crimes of this offence, first of all, the tax crimes, for which the re-use of the illicit gains within the company is expected.

It follows that, from now on, if a person undergoes a criminal proceedings for a tax crime committed in the course of a business, he/her may be held liable for self-laundering and, consequently, also the company to which the person is connected may be charged with this crime.

Hence the need for companies to update as soon as possible the Model of organization, management and control, existing a high risk that the company may incur in the perpetration of the self-laundering crime also for conduct - crimes committed before January 1, 2015, but whose use of illicit gains takes place after January 1, 2015.

CMS Italy Newsletter | 23 Jan 2015
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Portrait of Emilio Battaglia
Emilio Battaglia