Court of Cassation 16526/2025: The Burden of Proof in Liquidity Crisis for Tax Non-Punishability

Tax justice is a complex field, where the interpretation of rules can make the difference between a criminal sanction and a full acquittal. A recent ruling by the Court of Cassation, judgment no. 16526 of April 4, 2025 (filed on May 2, 2025), presided over by Dr. L. P. and with Dr. F. C. as rapporteur and author, offers fundamental clarifications on a crucial aspect: the cause for non-punishability for tax crimes arising from a subsequent liquidity crisis. This decision, which saw F. F. as the defendant, is of extreme importance for all taxpayers and legal professionals, as it specifies who must prove what when invoking this particular exemption.

The Regulatory Context: Liquidity Crisis as a Shield

The Italian legislator, with the aim of mitigating the severity of criminal sanctions in the tax field, introduced into Legislative Decree no. 74 of 2000, in Article 13, paragraph 3-bis (added by art. 1, letter f), no. 3, of Legislative Decree June 14, 2024, no. 87), a cause for non-punishability. This provision applies to cases where the failure to pay taxes or withholdings is due to a "subsequent and non-transitory liquidity crisis." The objective is to protect those taxpayers who, despite having collected taxes or made withholdings, find themselves objectively unable to pay them due to unforeseeable events not attributable to them. But what exactly does "subsequent and non-transitory" mean? And, above all, who must prove this condition?

The Cassation Ruling: A Crucial Clarification on the Burden of Proof

It is precisely on this last point that the Court of Cassation, with ruling 16526/2025, has provided clarity, precisely delineating the boundaries of the burden of proof. The Court has indeed established that it is up to the taxpayer to prove not only the existence of a liquidity crisis but also its nature and its occurrence. The maxim of the ruling is illuminating:

For the recognition of the cause of non-punishability referred to in art. 1, letter f), no. 3, legislative decree June 14, 2024, no. 87, which added paragraph 3-bis to art. 13 legislative decree March 10, 2000 no. 74, it is incumbent upon the taxpayer to indicate the specific elements and circumstances proving their lack of responsibility for the subsequent and non-transitory liquidity crisis, as well as its occurrence after the collection of the tax and the making of the certified withholdings.

This maxim means that the taxpayer cannot simply claim to be in economic difficulty. Instead, they must produce concrete and detailed evidence demonstrating their complete lack of responsibility for the cause of the crisis. Furthermore, it is not enough for the crisis to have occurred subsequently; it must also be non-transitory, meaning not short-lived, and, crucially, it must have occurred *after* the collection of the tax or the making of the withholdings. This distinguishes the case from a mere initial inability to pay, focusing attention on an unforeseeable and subsequent event that prevented compliance.

What Must the Taxpayer Prove?

To successfully invoke the cause of non-punishability, the taxpayer must therefore provide specific elements attesting to:

• **The subsequent nature of the crisis:** the economic difficulty must have arisen at a time subsequent to the obligation to pay taxes or certified withholdings.
• **Non-transitoriness:** the crisis must not be a fleeting phenomenon but must have a certain stability and depth, such as to make payment objectively impossible.
• **The taxpayer's lack of responsibility:** the causes of the crisis must not be attributable to reckless, imprudent, or, worse, fraudulent management choices by the taxpayer themselves. They must be external and unforeseeable factors (e.g., a sudden severe market crisis, unexpected non-payment by significant clients, extraordinary events).
• **Occurrence after collection/withholding:** the crisis must have occurred after the taxpayer had already received the sums or made the withholdings, demonstrating that at the time of the obligation they had the funds but lost them due to external causes.

These requirements are stringent and require accurate documentation and a well-structured defense strategy, often with the assistance of legal and accounting professionals.

Conclusions: A Warning for Diligence and Proof

Ruling 16526/2025 of the Cassation Court represents a firm point in jurisprudence regarding tax crimes and causes of non-punishability. It reinforces the principle that a liquidity crisis, to be considered a valid excuse for non-payment, cannot be a mere assertion but must be supported by irrefutable evidence demonstrating its objectivity, unforeseeability, and non-attributability to the taxpayer. This orientation imposes a high degree of diligence on taxpayers in financial management and, in case of difficulties, in collecting and preserving documentation that can attest to the occurrence and nature of the crisis. For the Law Firm, this means the need for a careful analysis of the client's asset and financial situation, in order to build a solid defense based on concrete evidentiary elements, essential to avoid the serious criminal consequences arising from non-compliance with tax obligations.