On the well-known question of whether embezzlement can be charged in cases of failure to pay over the tourist tax following the entry into force of the so-called Relaunch Decree, the Court of Cassation ruled out that the new legislation resulted in an abolitio criminis of embezzlement committed previously.
FACTS
1. By judgment of 16/10/2019, the preliminary investigations judge of the Court of Trapani, at the request of D.B.V. agreed with the Public Prosecutor, imposed on her under Article 444 of the Code of Criminal Procedure a sentence of one year and four months’ imprisonment for the offence under Article 81 and Article 314(1) of the Criminal Code, after granting general mitigating circumstances and the mitigating circumstance under Article 62(6) of the Criminal Code, and applying the one-third reduction for the choice of procedure.
The defendant appealed to the Court of Cassation, alleging misapplication of Article 314 of the Criminal Code, since the act charged – the appropriation of sums corresponding to the tourist tax paid by guests of the residence she managed, which were to be paid over to the municipal authority responsible for collecting the tax – would not constitute an offence.
LAW
1. The appeal is manifestly unfounded and must be declared inadmissible.
2. In support of the appeal it is argued that the temporary appropriation of a sum of money abstractly constitutes the less serious offence of embezzlement for use under Article 314(2) of the Criminal Code and that, specifically, the offence would not even be configurable given the allegedly modest economic value of the sums appropriated (from a minimum of €252.00 to a maximum of €1,308.00 for the four-monthly or six-monthly deadlines in the years concerned).
3. That said, and regardless of the fact that, as correctly noted by the Prosecutor General in written submissions, the appellant thereby challenges not the erroneous legal classification of the act, abstractly possible under Article 448(2-bis) of the Code of Criminal Procedure, but the very configurability of the offence in the case at hand, the legal argument underlying the appeal is clearly erroneous.
It is a settled principle in the case law of this Court that embezzlement for use can never be configured in respect of sums of money, since their fungible nature does not allow the return of the same thing after use, but only of the equivalent (tantundem), which is irrelevant for the purposes of the mitigated offence (Sec. 6, no. 49474 of 04/12/2015, Stanca, Rv. 266242; Sec. 6, no. 12368 of 17/10/2012, filed 2013, Medugno and another, Rv. 255997; Sec. 6, no. 27528 of 21/05/2009, Severi, Rv. 244531).
4. Pending the hearing of the appeal, postponed due to the Covid-19 epidemic emergency, Article 180 of Decree-Law no. 34 of 19 May 2020, converted into Law no. 77 of 20 July 2020, amended the rules on payment of the tourist tax by operators of hotels and accommodation facilities.
Since this legislative development affects the legal classification of the act charged, it is for the court of legitimacy to take cognisance of it (Article 609(2), first part, of the Code of Criminal Procedure) and examine it.
The examination must start from the amendment introduced by Article 180(4) of that Decree-Law, which inserted into Article 4 of Legislative Decree no. 23 of 14 March 2011 paragraph 1-ter, which reads: “the operator of the accommodation facility is responsible for paying the tourist tax referred to in paragraph 1 and the tourist contribution referred to in Article 14(16)(e) of Decree-Law no. 78 of 31 May 2010, converted with amendments into Law no. 122 of 30 July 2010, with a right of recourse against the taxpayers, for submitting the return, and for the other obligations provided for by law and by municipal regulations. The return must be submitted cumulatively and exclusively electronically by 30 June of the year following that in which the taxable event occurred, in accordance with the procedures approved by decree of the Minister of Economy and Finance, after consulting the State-Cities and Local Authorities Conference, to be issued within one hundred and eighty days of the entry into force of this measure. For failure to submit or inaccurate submission of the return by the person responsible, an administrative penalty of 100 to 200 per cent of the amount due applies. For failure to pay, late payment or partial payment of the tourist tax and tourist contribution, an administrative penalty under Article 13 of Legislative Decree no. 471 of 18 December 1997 applies.”
It is clear that under the amendment the operator of the facility is now identified, for the future, as the person responsible for paying the tourist tax (a figure provided for and defined by Article 64 of Presidential Decree no. 600 of 29 September 1973) and is subject to administrative penalties for failure to pay it.
From the entry into force of the amendment, it is therefore radically excluded that the offence of embezzlement can still be configured, since money not yet paid over as tax is by definition not someone else’s money, nor can the operator, as the legal person liable for the tax, be considered a person in charge of a public service (Article 358 of the Criminal Code).
The role assigned to the operator of the accommodation facility under the previous, composite legislation was different (Article 4 of Legislative Decree no. 23 of 14 March 2011, as amended and supplemented by Article 33 of Law no. 221 of 28 December 2015; Article 52 of Legislative Decree no. 446 of 15 December 1997; Article 74(1) of Royal Decree no. 2440 of 18 November 1923; Article 178 of Royal Decree no. 827 of 1924; Article 93(2) of Legislative Decree no. 267 of 2000 (TUEL); Legislative Decree no. 118 of 23 June 2011), fully identified, reconstructed and described by Sec. 6, no. 32058 of 17/05/2018, Locane Pantaleone, Rv. 273446, to which reference is made for the purposes of this decision: the operator acted as an auxiliary of the local authority in collecting the tax and, in handling public money, acted as an accounting agent with a duty to render accounts.
In that legislative context, and in cases entirely comparable to the present one, the case law of this Court held that embezzlement was committed by the operator of an accommodation facility who appropriated sums collected as tourist tax without paying them over to the Municipality, since carrying out the auxiliary activity of person responsible for collection and payment, instrumental to the performance of the tax obligation between the taxing authority and the guest, conferred the status of person in charge of a public service on the private party entrusted with physically collecting the tax (Sec. 6, no. 32058/18 cit.; likewise Sec. 6, no. 27707 of 26/03/2019, Norsa, Rv. 276220; Sec. 6, no. 53467 of 25/10/2017, Ranieri, unreported).
That case law also specified that the operator of a residential accommodation facility had the status of person in charge of a public service even without a prior specific appointment by the public administration (usually through municipal regulations), being an accounting agent and not a withholding agent, entrusted with an auxiliary activity on behalf of the taxing authority and objectively instrumental to the performance of the tax obligation existing exclusively between the Municipality and the person staying at the facility (Sec. 6, no. 32058/18 cit.).
Finally, it specified that the money came into the public administration’s possession at the very moment the operator collected the tourist tax, so that any allocation of the sums collected from taxpayers to cover items of a different nature, outside the public purpose for which they had been paid and received, constituted the appropriation under Article 314 of the Criminal Code (Sec. 6, no. 27707/19 cit.).
Completing this doctrinal framing of the operator as an auxiliary of the tax-collecting authority, Sec. 2, no. 29632 of 28/05/2019, PM in proc. Kunsagi, Rv. 276977 held that there was no relationship of speciality between the criminal offence of appropriation of sums received as tourist tax by businesses operating hotel and accommodation activities (in that case charged under Article 646 of the Criminal Code and reclassified by the Court under Article 314) and the failure to pay the same amounts to the municipal administration, punished administratively (in that case by municipal regulations), because the administrative offence concerned only the failure to pay over those sums, so that the principle under Article 9 of Law no. 681 of 24 November 1981 did not apply, in the absence of the prerequisite of identity of the act.
To sum up, the amendment in Article 180 of the so-called Relaunch Decree changed the tasks assigned to the operator of the accommodation facility in collecting the tax from those of an auxiliary of the entity responsible for collection (the local authority) to those of a person responsible for paying the tax and the tourist contribution, with a right of recourse against the user of the service, according to the scheme derived from Article 64(3) of the Consolidated Income Tax Act.
The immediate consequence of the legislature’s intervention is that, from the day (19 May) on which Decree-Law no. 34 of 2020 entered into force, failure to pay the tax obviously cannot fall within the offence of embezzlement (Article 314 of the Criminal Code), which instead presupposes the legal status of person in charge of a public service.
It remains to be determined whether, and what, consequences the amendment has for earlier conduct, including that charged against the appellant, in the absence of transitional rules.
In material terms, this is a change in the powers of a subject (the owner of the hotel or accommodation facility) that operates only from the entry into force of the amendment and not for the past.
The legislative choice of an objective and/or functional notion of person in charge of a public service (Article 358 of the Criminal Code) required, under the previous legislation, that the operator be classified as such precisely on the basis of the concrete powers assigned by law.
The change in collection arrangements therefore transformed the obligations and powers of the operator, who, in relation to the same tax, now bears completely different burdens.
In doctrinal terms, this is a succession over time of non-criminal rules in which, for acts prior to the legislative amendment, not only the criminal provision (Article 314 of the Criminal Code) but also the subjective status (Article 358 of the Criminal Code) required for punishment as embezzlement remained unchanged.
Since legal scholarship promptly commenting on the issue noted that “the legislative amendment has thus transformed the hotelier from a person in charge of the public service of collecting the tourist tax and paying it into the municipal coffers into the addressee of the tax obligation”, it must be specified that the transformation of the subjective status took effect only for the future, as a direct consequence of the replacement of certain legal obligations with others.
In short, previously the operator collected and held the (public) money paid by guests as tourist tax and then paid it over to the entity responsible for collection, whereas today the operator must pay the tax regardless of whether the guests have paid it, and may exercise a right of recourse against them in the manner typical of the person responsible for tax under Article 64 of the Consolidated Income Tax Act, and in particular paragraph 3 (“Whoever is obliged by law to pay the tax together with others, for acts or situations referable exclusively to them, has a right of recourse”).
It must consequently be ruled out that the change in the non-criminal legal framework governing payment of the tourist tax resulted in an abolitio criminis, since that effect occurs only when the amendment concerns rules that genuinely supplement the criminal law, such as those filling in blank criminal provisions or definitional rules, but not rules referred to by normative elements of the criminal offence – and none of these different situations, moreover, has arisen in the legislative development under examination.
Ascertaining whether an abolitio criminis has actually occurred on the basis of a structural criterion is the method this Court, including in its highest formation, has followed, for example in the paradigmatic ruling of the Joint Divisions no. 2451 of 27/09/2007, Magera, Rv. 238197, on the continued punishability of expelled Romanian citizens who had committed the offence of failing to comply with the order to leave the State issued by the Questore under Article 14(5-ter) of Legislative Decree no. 286 of 1998, even after Romania joined the European Union and they lost the status of non-EU nationals.
The same criterion had been adopted by the Joint Divisions, no. 25887 of 26/03/2003, Giordano and others, Rv. 224605, on the amendment of the provisions on false corporate communications (Articles 2621 and 2622 of the Civil Code) and on improper fraudulent bankruptcy resulting from a corporate offence (Article 223(2)(1) of Royal Decree no. 267 of 16 March 1942) by Articles 1 and 4 of Legislative Decree no. 61 of 11 April 2002, and would later be used again by the Joint Divisions, no. 19601 of 28/02/2008, Niccoli, Rv. 239398, on the amendments to Article 1 of Royal Decree no. 267 of 1942 by Legislative Decree no. 9 of 5 January 2006 and Legislative Decree no. 169 of 12 September 2007, concerning the objective requirement of the company’s insolvency and the subjective requirements relating to the conditions for an entrepreneur to be declared bankrupt.
Finally, with judgment no. 24468 of 26/02/2009, Rizzoli, Rv. 243586, on the abolition of controlled administration and the removal of all references to it in the Bankruptcy Law (Article 147 of Legislative Decree no. 5 of 2006), the Joint Divisions fully developed the principle that “in matters of succession of criminal laws, where the incriminating provision is amended, in order to establish whether there has been an abolitio criminis it is sufficient to carry out a structural comparison between the abstract legal offences that succeed one another over time, without the need to seek confirmation of any continuity between them by resorting to evaluative criteria based on the interests protected and the manner of harm, since that comparison makes it possible independently to verify whether the subsequent legislative intervention demolishes an element of the typical offence, thereby radically altering the offence, or, not affecting its structure, allows a possible space” of application to survive.
But, as anticipated, the case under examination involves a succession of non-criminal rules which, although interfering in their application both with the rule defining the subjective status of the offender (Article 358 of the Criminal Code) and with the rule establishing the structure of the offence (Article 314 of the Criminal Code), leave both unchanged, and can at most be said to be implicitly referred to by normative elements contained in both the definitional rule and the criminal offence.
For all the above reasons, it must finally be reaffirmed that conduct committed before the novatio legis under Article 180(4) of Decree-Law no. 34 of 19 May 2020, converted into Law no. 77 of 20 July 2020, including the conduct charged against the appellant, is criminally relevant as embezzlement.
5. The declaration of inadmissibility of the appeal entails, as provided by law, an order for the appellant to pay the costs of the proceedings and a sum to the Fund for Fines, which it is considered fair to set at €3,000.00 (three thousand).
ON THESE GROUNDS declares the appeal inadmissible and orders the appellant to pay the costs of the proceedings and the sum of three thousand euros to the Fund for Fines.
Decided in Rome on 28 September 2020.
Filed with the Registry on 30 October 2020
