A recent contribution of the Manager Michele Petito of the Italian Customs and Monopoly Agency on Criminal Confiscation highlighted how art. 22 of the Legislative Decree no. 472/1997 would in principle make it possible to preserve the entire assets of the companies and therefore also the bank accounts. The precautionary seizure measure must be ordered by the President of the Tax Commission at the request, adequately reasoned, of the Agency when there is a well-founded fear of losing the guarantee of one’s own credit.
Having stated the above, he pointed out that this rule is not used by the ADM (the Italian Customs and Monopoly Agency), as it is superseded by art. 9 of Legislative Decree no. 16/2012 (so-called Decree on Tax Simplifications) which provides that the deeds of assessment issued by the ADM, for the purpose of collecting traditional own resources and the related import VAT, become enforceable within 10 days of notification and after the aforementioned deadline, the collection of the sums requested, notwithstanding the provisions on registration in the role, is entrusted to the collection agents, also for the purpose of forced execution. Therefore, the collection activity is delegated to Equitalia Giustizia which, using the FUG (judicial unique fund), will distribute the sums corresponding to the duty processed between the Ministry of the Interior – Ministry of Justice and State Budget. At customs, on the other hand, the duty debt (equal to the confiscated amount) will remain registered in accounting B, without Customs being able to pay the duty to the EU budget.
In these cases, he said that a so-called “making available of own resources” procedure opens, which will in any case involve the payment of the duty due by the Italian State, with an increase of 14% equal to the interest due for the delayed payment. However, he also underlined that it could also happen that the GIP (judge for the preliminary investigations) doesn’t validate the seizure aimed at confiscation, ordering the refund of the sums to the importer, who, having obtained the sums, could fraudulently transfer them abroad, preventing their recovery. In such cases, the sums would not be recovered by the State which will still have to start the so-called “making available” procedure. It is clear that the aforementioned sums, if they had been entered in customs accounts at the time of the seizure, would have remained bound by the customs debt ascertained and therefore would not have been returned to the customs debtor.
According to current legislation, the duties entered in the customs accounts and that are paid to the EU budget are only those subject to ordinary payment at the time of customs clearance and/ or following revision of the assessment and do not flow in it, instead, those subject to coercive collection that, on the contrary, being destined for the FUG, are being removed from the EU budget.
Finally, the Manager of the Eppo’s reports office based in Rome pointed out that the same problem concerns confiscated assets that are subject to judicial sale because the proceeds from the judicial auction flow entirely into the FUG.