Donation and sale of properties in the presence of tax debt

Care must be taken when, in the presence of 'known tax debts', it is advisable to strip away any real estate, either by donation or by fictitious sale

Donation and sale of properties in the presence of tax debt

A parent decides to donate to their child the residential property, where the family lives, with the intention of moving with her husband to another home. Since the mother, exercising a commercial activity, is debtor for various numbers (VAT, IRPEF, INPS) of the Treasury, the Revenue Agency, of which she is aware by virtue of duly notified assessment documents, detects the donation and reports to the competent Public Prosecutor's Office to assess the existence of criminal offenses.

The competent Public Prosecutor's Office notes the existence of the crime referred to in art. 11 para. Legislative Decree 10 March 2000 n. 74, with this motivation: in that, in order to avoid the payment of tax debts amounting to a total of Euro ........., he committed fraudulent acts on the assets making the compulsory collection procedure ineffective, in particular with a public deed of ....... …………. Real estate units, which she owned, through a donation in favor of her son ". Art. 11 cpv., Of Legislative Decree 10 March 2000, n. 74, reads as follows: Anyone who, in order to avoid paying income or value added taxes or interest or administrative penalties relating to said taxes for a total amount of 50,000 euros, is punished with imprisonment from six months to four years , 00 =, simulatesly alienates or carries out fraudulent acts on their own or on others' assets that are capable of rendering the compulsory collection procedure totally or partially ineffective. If the amount of taxes, penalties and interest exceeds € 200,000.00 = imprisonment from one year to six years is applied ".

The conduct is punished by way of specific malice (i.e. when the incriminating provision requires, in order to integrate the case in point, that the subject, in addition to representing himself and wanting the typical fact, acts with the intent of achieving a further purpose), whose the aim is to avoid paying taxes on income or value added, preserving one's property from aggression by the treasury. Particularly serious consequence of the aforementioned crime is the confiscation of the property, with revocation of the donation.

The Supreme Court, with sentence of the III Criminal Section no. 41704 of 08.05.2018 also established that: 'The transfer to the Equity Fund of the bare ownership of two properties can result in the offense pursuant to art. 11 Legislative Decree 74/2000. The aforementioned provision penalizes anyone, in order to evade payment of income or value added taxes, or interest or administrative penalties relating to said taxes, for an amount exceeding 50 thousand euros, simulatively alienates or carries out fraudulent acts on their own or other people's assets , capable of rendering the compulsory collection procedure ineffective '.

The foregoing highlights the need to be very careful when, in the presence of 'known tax debts', it is advisable to strip away any real estate, either by donation or by fictitious sale (with hidden counter-declaration).

The rules on this point are, as can be seen, very strict, and thinking of saving one's assets from the eventual execution of the credit claim of the Treasury, subtracting them through the instrument of donation or fictitious sale, is a very bad idea. It must also be clarified that the aforementioned provision (Article 11, para. Legislative Decree 74/2000), in its most serious case, with the penalty of imprisonment from one year to six years, does not allow to use the Institute of the put to the test ", pursuant to art. 168 bis et seq., (Introduced by Law 67/2014) of the Criminal Code, i.e. the suspension of the process and the performance of certain public utility activities, managed by the E.U.PE. (External Criminal Enforcement Office), upon the outcome of which (if the judgment is positive), the offense is declared extinct.

In fact, the use of this Institute is permitted only for proceedings for crimes punishable by the single monetary penalty or with the legal custodial penalty not exceeding a maximum of four years, alone, jointly or as an alternative to the monetary penalty, as well as for crimes indicated in paragraph 2 of art. 550 of the criminal procedure code.

So you need to be very careful, and if you are at fault with the Treasury, before carrying out operations on your properties, it is good to consult an expert in the sector (tax consultant, accountant, lawyer), in order to ascertain, in the first instance, the amount of its tax debt, verifying its real consistency, and only subsequently, proceed with any donation or sale of its assets.

The state's power of confiscation allows it to confiscate even the purchased and sold property, with the consequence that the buyer of the property, stripped by the same, will ask the seller to account for it, who will be forced to return the amount obtained from the sale. . Lastly, it must be noted that it does not escape the commission of the crime referred to in art. 11, para. Legislative Decree 74/2000, the subject, who stripped of a property, deposits the proceeds of the sale on an escrow account.

The offense is committed at the time of the simulated alienation or the performance of other fraudulent acts on the assets, capable of rendering the compulsory collection procedure ineffective.

Avv. Angela Calcaterra 

Avv. Piercarlo Baraglio

Avvocati in TORINO

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