Comment on Judgment No. 50314 of 2023: Subjective Non-Existence and Direct Taxes

The judgment no. 50314 of September 27, 2023, issued by the Court of Cassation, represents an important reference point in Italian jurisprudence regarding tax crimes. The subject of the ruling is the crime of fraudulent use of invoices for non-existent transactions, with particular attention to the subjective non-existence of the transaction. This concept is unfortunately often overlooked but has a significant impact on the criminal liability of the taxpayer.

The Context of the Judgment

In the specific case, the defendant, G. L., was accused of having incurred documented costs that, according to the prosecution, were not related to the business activity. The Court held that subjective non-existence materializes when the costs, knowingly incurred, are directed towards purposes other than those inherent to the business activity. This aspect is crucial, as it implies that it is not enough to demonstrate the non-existence of the transactions to constitute the crime; it is also necessary to assess the intentions of the defendant and the actual use of the invoices.

The Maxim of the Judgment

Crime referred to in Article 2 of Legislative Decree No. 74 of 2000 - Subjective non-existence of the transaction - Direct taxes - Documented costs incurred by the transferee for purposes other and different from those of the business activity - Existence - Reasons. The crime of fraudulent use in the declaration of invoices for non-existent transactions is also integrated, regarding direct taxes, by subjective non-existence, in cases where the documented costs, knowingly incurred by the transferee, are an expression of diversion towards purposes other and different from those of the business activity, given that they cause the cessation of the indispensable requirement of relevance between costs and business activity.

This maxim highlights how subjective non-existence can lead to a broader interpretation of the crime in question. It is not only a matter of verifying whether the economic operations have actually been carried out but also of understanding whether the costs incurred have been used in line with the business activity. The Court, therefore, establishes a direct link between subjective non-existence and criminal liability, emphasizing the importance of relevance between costs and business activity.

Practical Implications and Conclusions

The implications of this judgment are manifold and concern not only corporate entities but also professionals in the tax and fiscal sector. It is essential for those operating in the field to pay attention to the documentation and justification of the costs incurred. Otherwise, there is a risk of incurring serious criminal penalties.

  • Verify the relevance of the costs in relation to the activity performed.
  • Adequately document the expenses incurred.
  • Be aware of one's intentions in the use of invoices.

In conclusion, judgment no. 50314 of 2023 represents an important reminder of responsibility and diligence in the tax sector, highlighting how subjective non-existence can expand the boundaries of the crime of fraudulent use of invoices. Awareness and transparency in economic operations are therefore essential to avoid legal issues.

Bianucci Law Firm