Criminal Cassation no. 15493/2024: undue offset and seizure of profit, when does it really apply?

The Third Section of the Court of Cassation, with ruling no. 15493 of December 19, 2024 (filed April 18, 2025), returns to address the crime of undue offset under art. 10-quater of Legislative Decree 74/2000, annulling with referral an ordinance of the Tribunal of Review of Frosinone. The focal point is the correct identification of the 'profit' that can be seized and the need to verify its concrete existence. A topic of great interest for companies, tax consultants, and criminal defense lawyers.

The core of the decision

In the context of undue offset, even though the crime is perfected at the moment the taxpayer presents, as an offset for their tax debts, non-existent or undue credits, the seizure of the profit it has generated, functional to subsequent confiscation, relating to the economic saving derived from the subtraction of the evaded amounts from their tax destination, requires the judge to verify beforehand that the Revenue Agency has not definitively prevented the concrete realization of the offset, so as to frustrate the criminal intent pursued by the taxpayer.

Comment: the Court clearly distinguishes between the consummation of the crime (which occurs with the mere submission of the falsified F24 form) and the existence of the financial profit. If the Administration has rejected or blocked the offset, the economic advantage is not produced: consequently, the object on which the preventive seizure aimed at mandatory confiscation under art. 12-bis can fall is missing.

Illicit profits and seizure: what changes

The decision refers to precedents from the same United Sections (rulings 1657/2019 and 39478/2024) and reiterates that the profit of the crime referred to in art. 10-quater coincides with the taxpayer's cost saving, i.e., the unpaid tax.

• If the offset is processed and accepted by the Entratel system, the profit is actual: the seizure can 'attack' sums of equal amount in the accounts or assets of the suspect.
• If, on the other hand, the Revenue Agency rejects the F24 or registers the debt, the economic advantage is only potential; the seizure must be denied or limited.
• The judge of review must therefore ascertain the status of the tax file and the presence of definitive obstructive acts before ordering precautionary financial measures.

The Court refers to art. 321, para. 2, of the Code of Criminal Procedure, emphasizing the need for proportionality: the anticipatory ablation of resources must effectively strike the profit and not turn into a baseless preventive sanction.

Practical implications for businesses and professionals

For taxpayers, the ruling represents an important protection: if the irregular offset has been neutralized by the Agency, they cannot suffer substantial seizures based solely on the mere submission of the F24. For professionals (accountants and labor consultants), the need arises to:

• verify F24 form rejections in real-time and keep documentation of rejection;
• monitor notices and communications from the Agency, useful in criminal defense proceedings;
• advise immediate voluntary compliance if the credit is doubtful, in order to exclude the subjective element of intent.

Conclusions

The Court of Cassation, with ruling no. 15493/2024, reiterates a principle of legal civilization: seizure must only target profit actually obtained. The judge is called upon to make a substantial assessment, avoiding automatic precautionary measures. Companies and defense lawyers will therefore have to focus on proving the timely intervention of the Agency, which, if effective, neutralizes the profit and prevents confiscation. This is an orientation that strengthens the balance between fiscal needs and the guarantees of the suspect, emphasizing concreteness rather than abstraction of the offense.