The crime of money laundering is defined in article 301 of the Criminal Code and requires proof of: 1) the existence of a prior crime as the origin of the laundered assets; 2) that this crime is capable of generating economic profits; 3) the connection between said crime and the accredited profits, so that it can be affirmed in a sufficiently robust manner that the profits originate from the aforementioned crime; and 4) carrying out behaviours described in the criminal type that have the purpose of concealing the criminal origin of said assets.
A prior conviction for the crime of origin of the assets is not necessary, nor an exhaustive description of the previous criminal activity, although it is necessary to sufficiently describe a conduct that could be constitutive of crime and that is the origin of the laundered assets.
Jurisprudence has affirmed that the existence of the crime and that the assets which are the object of the money laundering originate from it is an element of the crime of money laundering and can be accredited with circumstantial evidence.
The Supreme Court Decision 628/2011, of July 22, reasoned: "It is not necessary to identify a specific criminal act, nor need there already be a conviction that establishes this. But it requires, at the very least, a minimum identification, so that it can be affirmed in a forceful way that the origin of the goods is not an only illicit activity, but also a criminal one ".
We can now deliberate as to if these requirements are met when the subject invests or uses the quotas defrauded from the Public Treasury (to the amount of over €120.000). That is, if this investment or use can be considered as a money laundering crime, typified in article 301 of the Penal Code.
The latest European Union Directive on Money Laundering seems to answer the above in the affirmative when it says that criminal activity is understood as "Any type of criminal participation in the commission of serious crimes" and includes among them "The tax offenses related to direct and indirect taxes defined in the national legislation of the Member States".
This issue was resolved affirmatively in the Supreme Court's Judgment of December 5, 2012, although it pointed out that, in order for the crime of money laundering to exist, it would be necessary, on the one hand, to deal with operations in that there was a specific purpose of concealment of criminal origin and, on the other hand, a clear relationship could be established between the flow of money and the defrauded tax payments.
It must also be borne in mind that if, together with the proceeds of criminal activity, there are others of legal origin, the matter is complicated, since the latter can never constitute the basis of a crime of money laundering. And in a crime of tax fraud, the author has legal income even though it is hidden.
The Judgment of the Supreme Court of June 8, 2018 considered that the defrauded quota or payment constitutes a suitable asset within the meaning of Article 301 of the Penal Code, but understood that the difficulty lies in determining or identifying those illicit assets in the patrimony of the author of the crime, because it would not be admissible to consider that all the patrimony of the taxpayer has been contaminated. Therefore, if it is not possible to individualize the tax payments in the patrimony of the taxpayer, it will not be possible to carry out the typical behaviour of the crime of money laundering.
Indubitably, the answer to the question we have asked must be affirmative, as the investment or use of the defrauded payments (provided that it exceeds €120.000) to the Public Treasury may represent a money laundering crime, but it must be analysed on a case by case basis, since there are several factors that must be taken into account when passing a sentence of an acquittal or conviction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.