Regarding declarative tax-related crimes, The Supreme Court of Cassation has clarified in its judgment No. 31017/2023 that: “managers of a company who have not signed a fraudulent tax declaration by using invoices for non-existent transactions since another administrator provided this, “concretely” in their assigned functions, respond in conjunction with the crime referred to in art. 2 L.D. n. 74 of 2000 only if they have been aware of the inclusion of such false documents in the accounts and, nevertheless, have not acted to prevent their indication in the declaration or to prevent the submission of the latter”. Until this statement, there was only one previous trend according to which, in line with the established guideline on fraudulent bankruptcy, in the case of offences committed by individual members of the board of directors of limited companies in the framework of which no specific delegation has been conferred, in which no specific delegation has been conferred, where there is an intentional breach of the obligation to supervise and control the performance of corporate management resulting from the position of guarantee pursuant to art. 2392 c.c., each of the managers is liable as a competition for failure to prevent the event.
In relation to fraudulent asset bankruptcy, however, the competition for not preventing the event of the administrator without delegation was considered configurable only when it emerges, both is evidence of actual knowledge of facts prejudicial to society or, at least, of unambiguous warning signs from which, according to criteria specific to any intentional act, the acceptance of the risk of the occurrence of the unlawful event and the proof of the will, in the form of indirect intent, not to take action to avoid the criminal event.
Pursuant to art. 2392 c.c., in fact, the trustees, unless the evidence has been established by some managers in the exercise of attributions of the executive committee or of functions concretely attributed to one or more directors are jointly and severally liable if, in the knowledge of prejudicial facts, they have not done all they can to prevent their completion or to eliminate or mitigate the harmful consequences.
Because of this normative datum, the Supreme Assembly, also in matters of declaratory tax offences, stated that the directors without delegation are liable for the facts prejudicial to the company committed in violation of the law or the articles of association by one of them in the exercise of functions concretely assigned to the same, only if they knew about it and did not do everything possible to prevent its completion.