Analysis of Judgment No. 23962 of 2023: Undue Offset and Confiscation of Profits

Judgment No. 23962 of February 10, 2023, filed on June 5, 2023, offers important insights into the crime of undue offset, as provided for by Article 10-quater of Legislative Decree No. 74 of 2000. In a context where tax legislation and its applications are increasingly scrutinized, this ruling is part of a fundamental legal debate for taxpayers and industry professionals.

Context of the Judgment

The Court of Cassation has reiterated that the crime of undue offset is perfected upon the submission of the last F24 form relating to the year in question. This aspect is crucial for understanding the consummation point of the offense, which also determines the consequences in terms of confiscable profit.

Crime of undue offset pursuant to art. 10-quater of Legislative Decree No. 74 of 2000 - Consummation point - Consequences - Confiscable profit - Subsequent events - Irrelevance. The crime of undue offset under art. 10-quater of Legislative Decree of March 10, 2000, No. 74, is perfected upon the submission of the last F24 form relating to the year concerned. Therefore, the profit subject to confiscation, corresponding to the sum not paid as a result of the deceptive conduct, must be calculated with regard to the moment when such sum should have been paid. Subsequent payment of the unpaid sum may result in a mere reduction of the "quantum" subject to confiscation and the "sterilization" of its effectiveness, provided that the taxpayer undertakes to pay the amount due within the deadlines allowed by the relevant tax legislation.

Implications of the Decision

The judgment clarifies that the sum not paid due to deceptive conduct is considered for the calculation of confiscable profit only at the time it should have been paid. This means that any subsequent payments do not nullify the crime but can reduce the value of the confiscation. This position is consistent with the principles of tax justice and proportionality of sanctions.

• Clarity on the consummation point of the offense.
• Definition of economic consequences in case of undue use of credits.
• Possibility of reducing confiscable profit in case of regularization.

Conclusions

In conclusion, judgment No. 23962 of 2023 serves as an important reference point for case law on undue offset. It provides clear guidance for taxpayers and industry professionals, outlining the boundaries of the offense and the legal consequences of violations. It is essential for taxpayers to fully understand their responsibilities and the potential implications of their actions to avoid future penalties and legal issues.