Self-laundering of the proceeds of tax evasion in comparative law
| Author | Anna Maria Maugeri |
| Date | 01 March 2018 |
| Published date | 01 March 2018 |
| DOI | 10.1177/2032284418757385 |
| Subject Matter | Articles |
Article
Self-laundering of the proceeds
of tax evasion in comparative
law: Between effectiveness
and safeguards
Anna Maria Maugeri
University of Catania, Italy
Abstract
The supranational and, in particular, European legislation impose the inclusion of tax evasion
among the predicate offences of the money laundering and urge the introduction of the offence of
self-laundering. Despite these inputs, the criminalization of self-laundering is problematic in terms
of respect of the rule of law. In this perspective, the article highlights the difficulty of considering, in
comparative law, the proceeds of tax evasion as a criminal profit which can be laundered, as well as
the problems posed by the criminalization of self-laundering of this tax saving with respect to the
principles of both ne bis in idem and proportionality. Subsequently, the article will focus on the
aims of criminalizing the act of self-laundering, and also in this perspective the link emerges with tax
evasion, before evaluating the necessity of such a tool in the broader armamentarium available
today in the fight against the accumulation of illicit capital.
Keywords
Self-laundering, tax saving, ne bis in idem principle, comparative law, proportionality principle
Premise
In May 1998, the G7 Finance Ministers highlighted the substantial similarities between the tech-
niques used to launder the proceeds of crime and those used to commit tax crimes and encouraged
international action to enhance the capacity of anti-money laundering systems to deal effectively
with tax-related crimes.
1
Corresponding author:
Anna Maria Maugeri, Department of Law, University of Catania, Catania 95030, Italy.
E-mail: amaugeri@lex.unict.it
1. Special Committee on Organised Crime, Corruption and Money Laundering (CRIM), Relationship between Money
Laundering, Tax Evasion and Tax Havens, Mr R Tavares, Greens/EFA (2013).
New Journal of European Criminal Law
2018, Vol. 9(1) 83–108
ªThe Author(s) 2018
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DOI: 10.1177/2032284418757385
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On this issue, opinion emphasizes the close connection that exists between money laundering
and tax evasion
2
as both the launderer and the evader are persons acting on the market, altering the
competitive balance. The criminalization of both phenomena is aimed, therefore, at preventing the
risk – exacerbated in periods of economic crisis – ‘that they may enjoy an unfair competitive
advantage consisting, respectively, of the proceeds subtracted from taxation and the assets of illicit
origin, capable of being placed back into the legal economy’.
3
Money laundering has a multiplier effect of criminal pollution of the economy, allowing
criminals to turn illicit income into purchasing power.
4
The criminalization of this offence, and
more so of self-laundering, protects the economic order, in particular in the form of savings and
investment, coinciding with the equal treatment of investors, that is, the fundamental right of
everyone to equal conditions of risk in investing in a market economy: self-laundering is an unfair
competitive behavior.
5
Consequently, the designation of self-laundering as an offence attempts to
freeze the profits in the hands of the person who committed the alleged crime, so as to prevent its
further offensive use which endangers or even undermines ‘the economic order’.
6
According to another perspective, the criminalization of self-laundering is justified if the
identity of the offence is focused on the concealment of the origin of the res, by excluding from
the scope of all so-called neutral acts. Self-laundering consists in a concealing manoeuvre, not
bound by any implication to the predicate offence, wh ich hinders the good administration of
justice; only this perspective would give autonomy to the offence in relation to the predicate
crime, while the lack of any necessary implication would allow the exclusion of a ne bis in idem.
7
In the light of these considerations and with the input of supranational legislation (which is
analysed in the next paragraph), many European countries have seen the legislator including tax
crimes among the premise crime of money laundering and introduce the crime of self-laundering,
notwithstanding the doubts about the violation of the principle of ne bis in idem. In fact, the use of
the proceeds of one’s own crimes has always been considered a natural consequence of the crime
which does not warrant autonomous criminalization and punishment, a dilemma which is empha-
sized in the case of self-laundering of the profits of tax evasion, as this is a saving.
2. This connection can be appreciated with regard to the instruments used to realize the criminal plans (legal instruments
that guarantee anonymity – e.g. trust and fiduciary mandates – tools which dissimulate resources – e.g. false invoicing –
and so on).
3. R. Razzante, I. Borrello and L. La Rocca, ‘La necessita` di un approccio multidisciplinare al ‘‘fenomeno riciclaggio’’‘,in
R. Razzante, ed., Il riciclaggio come fenomeno transnazionale: normative a confronto (Giuffre`, Milano, 2014), p. 61;
see International Monetary Fund. Legal Dept., Italy: Detailed Assessment Report on Anti-Money Laundering and
Combating the Financing of Terrorism, (2016) §§ 25, 102 and 119. Available at: https://www.imf.org/en/Publications/
CR/Issues/2016/12/31/Italy-D etailed-Assessment-Report-on-Anti-Money-Launderin g-and-Combating-the-Financing-
of-43690.
4. D. Masciandaro, Banche e riciclaggio, analisi economica e regolamentazione (Bancaria Editrice, Roma, 1994), p. 37 et
seq.; M. Zanchetti, ‘Riciclaggio’, (1997) Dig.Pen. vol. XII, p. 394.
5. Zanchetti, ‘Riciclaggio’, p. 395; F. La Manna, ‘Autoriciclaggio: un privilegio da abolire?’ Rivista della Guardia di
Finanza 3 (2014), p. 851, 871; A. D’Avirro and M. Giglioli, ‘Autoriciclaggio e reati tributari’, Dir.Pen.Proc. 2 (2015),
p. 133, 139; G. Morgante, ‘Riflessioni su taluni profili problematici dei rapporti tra fattispecie aventi ad oggetto
operazioni in denaro o beni di provenienza illecita’, Cass. Pen (1998), p. 2500, 2518.
6. See V. Manes, ‘Ricettazione (Article 648 CP)’, in G. Insolera, N. Mazzacuva, F. Sgubbi, L. Stortoni, F. Tagliarini, eds.,
Diritto penale. Lineamenti di parte speciale (Monduzzi, Milano, 2000), p. 58.
7. S. Faiella,Riciclaggio e crimine organizzatotransnazionale (Giuffre`, Milano, 2009), p. 303 .S ee G. Forti, ‘Introduzione’,
in M. Arnone and S. Giavazzi, eds., Riciclaggio e imprese.Il contrasto alla circolazione dei proventi illeciti (Vita e
Pensiero, Milano,2011), p. 10; A. Macchia, ‘Spunti sul delittodi riciclaggio’, Cass. Pen (2014). 1449, 1454et seq.
84 New Journal of European Criminal Law 9(1)
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