Invoices for Non-Existent Transactions: The Court of Cassation and the Responsibility of the Potential User (Judgment no. 10400/2024)

In the complex landscape of tax criminal law, the issue of the responsibility of those who receive or could use invoices for non-existent transactions has always represented a point of delicate balance. The recent judgment of the Court of Cassation, no. 10400 of November 19, 2024 (filed on March 17, 2025), enters this debate with a ruling of considerable importance, clarifying the boundaries of criminal conspiracy and the applicability of Article 110 of the Criminal Code in such contexts. This decision, which saw B. M. S.R.L. as the defendant and Dr. A. A. as the rapporteur, annuls with referral a previous decision of the Tribunal of Liberty of Salerno, offering important food for thought for professionals and businesses.

Criminal Conspiracy in Tax Fraud: A Fundamental Principle

The judgment in question addresses the issue of criminal conspiracy, specifically in the context of invoices for non-existent transactions. Article 110 of the Criminal Code states that "when several persons conspire in the same crime, each of them shall be subject to the penalty established for it, without prejudice to the provisions of the following articles." This general principle is the pillar on which shared criminal responsibility is based, extending also to tax crimes, which often involve the participation of multiple subjects with different roles.

The Court of Cassation focused on the case of the "potential user" of such documents, i.e., someone who, even if they have not yet actually used the false invoices for tax evasion purposes, is in a position to do so. The crucial question is whether such a person can be considered a conspirator in the crime committed by the issuer of the invoices, according to the ordinary rules of criminal conspiracy, or whether a derogating discipline provided by special tax legislation should apply.

The potential user of documents or invoices issued for non-existent transactions, if the prerequisites are met, can conspire with the issuer, according to the ordinary discipline set forth in art. 110 of the Criminal Code, as the derogating regime provided for by art. 9 of Legislative Decree March 10, 2000, no. 74 is not applicable in such cases. (Precautionary case relating to the assignment of the tax credit for the so-called "facade bonus," in which, as the crime of fraudulent declaration under art. 2 of the aforementioned legislative decree was not contested to the recipients of the non-existent invoices, the Court held that no provision prevents considering the ordinary discipline of criminal conspiracy under the subsequent art. 8 as applicable also to the recipient of the invoice issued by the future assignee of the credit).

This maxim is of fundamental importance. It clarifies that the subject who could use fictitious documents or invoices is not automatically excluded from criminal liability. Indeed, if the prerequisites exist (i.e., if their conduct falls within the categories of conspiracy under Art. 110 of the Criminal Code, such as agreement or facilitation of the issuer), they can be held responsible along with the issuer of the invoices. The judgment specifies that, in these cases, the special regime under Article 9 of Legislative Decree March 10, 2000, no. 74 does not apply. The latter article, in fact, provides for non-punishability for the subject who avails themselves of invoices or other documents for non-existent transactions if the conduct did not affect the determination of the tax or if the tax was paid anyway. However, the Court of Cassation establishes that this derogation does not apply when a criminal conspiracy with the issuer is established.

Legislative Decree 74/2000 and the Specificity of Conspiracy

Legislative Decree no. 74/2000 is the reference legislation for crimes related to income taxes and value added tax. In particular:

• Art. 2 Legislative Decree 74/2000: Punishes fraudulent declaration through the use of invoices or other documents for non-existent transactions.
• Art. 8 Legislative Decree 74/2000: Stipulates that anyone who, in order to allow third parties to evade income taxes or value added tax, issues or releases invoices or other documents for non-existent transactions shall be punished with imprisonment.
• Art. 9 Legislative Decree 74/2000: Concerns the user of invoices for non-existent transactions, providing, as mentioned, conditions for non-punishability in certain circumstances.

The Court examined a precautionary case related to the assignment of the tax credit for the so-called "facade bonus"