Cass. pen. n. 20822/2024: Undue offsetting and criminal liability in the tax context

The judgment of the Court of Cassation no. 20822 of 21 February 2024 analyzes the case of an entrepreneur accused of using non-existent VAT credits to offset tax debts, raising crucial questions about criminal liability in the tax field. The Court confirmed the decision of the Naples Review Court, which had found a serious circumstantial framework against the defendant A.A., considering him aware of the tax frauds in which he was involved.

Context of the judgment

The case concerned an entrepreneur, A.A., accused of having, in concert with other individuals, used fictitious VAT credits to extinguish tax debts, thereby aggravating his position. The Court examined the defendant's conduct in light of Legislative Decree no. 74 of 2000, particularly Article 10 quater, which punishes the undue offsetting of non-existent credits.

Criminal liability is established even in the presence of apparently justifiable conduct, if it is part of a systematic fraud.

The defence attempted to demonstrate A.A.'s lack of involvement in the alleged crimes, arguing that he was a victim of a scam orchestrated by his co-defendants. However, the Court held that the appellant was fully aware of the illicit nature of the operation, highlighting various circumstantial elements that demonstrated his active participation.

Circumstantial elements and assessment of liability

The Court highlighted several aspects that contributed to establishing the defendant's liability:

• The negligible price of the credit purchased, which should have raised suspicions.
• Contradictions in the explanations provided by A.A. during the interrogation.
• Awareness of the criminal context and active participation in illicit operations.

These elements convinced the Court of A.A.'s criminal liability, making his appeal inadmissible. The decision highlights how, even in business contexts, awareness and the intention to participate in tax fraud can lead to serious legal consequences.

Conclusions

Judgment no. 20822 of 2024 represents an important legal precedent in tax and criminal law. It highlights the need for entrepreneurs to be vigilant and transparent in their tax operations to avoid incurring criminal liability. The Court clarified that awareness of the fraud and active involvement in the illicit system are sufficient to establish criminal liability, even in the absence of direct proof of specific intent.