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The use of invoices for non-existent transactions constitutes two distinct crimes

Updated: Apr 30, 2021

With the recent judicial ruling no. 13275 of April 9, 2021, the Third Section of the Italian Supreme Court established that through the use of false invoices for the evasion of both direct taxes and VAT, two distinct crimes are configured, with the possibility of applying the legal status of the continuation.

In this case, the defendant was convicted of the crime of tax fraud (pursuant to Article 2, Legislative Decree 74/2000) because, in the tax returns of direct taxes and VAT, he used the same invoices relating to transactions that do not actually exist for both declarations.

Article 2 of Legislative Decree 74/2000 establishes in fact that “1. Anyone who, in order to evade income or value added taxes, using invoices or other documents for non-existent transactions, indicates fictitious passive elements in one of the declarations relating to such taxes, is punished with imprisonment from four to eight years.

2. The offense is considered committed by making use of invoices or other documents for non-existent transactions when such invoices or documents are recorded in the mandatory accounting records, or are held for evidence purposes against the financial administration.”

The defendant alleged the missed violation of the law in reference to the quantification of the penalty and the calculation of the continuation pursuant to art. 81 of the Italian Criminal Code, arguing that, although the taxes evaded were different, a single violation should be considered for each tax year.

The Italian Supreme Court considered the thesis according to which the use of invoices involved a single crime to be erroneous, declaring that it is possible to consider coexisting, in the same discipline, "two distinct crimes connected to the distinct declaratory obligations for the purposes of income taxes and VAT ", with consequent application of the legal status of the continuation pursuant to art. 81 c.p . for the purpose of calculating the penalty.

Avv. Francesco Bianchi

* This article is not a legal advice, but it has an informative function only. For personalized legal advice, contact us by e-mail or by phone +39 06 916505710.

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