By judgment No 40797/2023, lodged on 6 October 2023, the Supreme Court intervened, once again in United Chambers, in order to resolve a jurisprudential conflict between several, previous, Joint Chamber judgments (Court of Cassation Criminal Section No. 29951/2004, Criminal Cassation Criminal Section No. 11170/2014, Criminal Cassation Criminal Section No. 45936/2019) and stated the following principle of law: “bankruptcy does not prevent the adoption or permanence, if already provided, of the preventive seizure order aimed at the confiscation of tax offences”.
In the years, in fact, two different orientations were formed about the prevalence or not of the criminal ablatory measure with respect to the insolvency procedure.
According to the first of the two guidelines, also adopted by the recent ruling of the Supreme Court, assets attracted to bankruptcy cannot be considered assets belonging “to a person extraneous to the crime” pursuant to Article 12bis of Legislative Decree 74/2000 and, therefore, a declaration of bankruptcy does not preclude a direct or equivalent confiscation order under the same rule.
The opposite approach, on the other hand, assumes that the declaration of bankruptcy means that the bankrupt person no longer has the power to dispose of his/her assets that passes to the administrator, a third party who is not involved in the commission of the crime. This approach also highlights the risk of jeopardizing the partial creditor status, with the consequent privilege of the Treasury’s position.
In that regard, however, the tax jurisprudence of legitimacy had already clarified that the recovery of the profit of the crime through confiscation does not concern the mere recovery of a claim (recovery following the rules already provided by the bankruptcy law), but it is necessary to assure the State the profit of the crime itself and to ensure the repression of crimes.
For completeness, please note that with Art. 317 Legislative Decree 14/2019 in matter of Business Crisis, has been expressly ordered, with reference to articles 318, 319 and 320 of the Anti-mafia Code, the prevalence of preventive seizure aimed at confiscation compared to insolvency proceedings.