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

Judgment No. 50314 of September 27, 2023, issued by the Court of Cassation, represents an important reference point in Italian jurisprudence regarding tax offenses. 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, unfortunately, is often overlooked but has a significant impact on the taxpayer's criminal liability.

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 inherent to the business activity. The Court held that subjective non-existence occurs when costs, knowingly incurred, were directed towards purposes other than those inherent to the business activity. This aspect is crucial, as it implies that it is not enough to prove the non-existence of the transactions to constitute the crime; it is also necessary to assess the defendant's intentions and the actual use of the invoices.

The Ruling's Headnote

Crime under art. 2 Legislative Decree No. 74 of 2000 – Subjective non-existence of the transaction – Direct taxes – Documented costs incurred by the transferee for purposes additional to and different from those of the business activity – Existence – Reasons. The crime of fraudulent use in tax returns of invoices for non-existent transactions is constituted, with regard to direct taxes, also by subjective non-existence, where the documented costs, knowingly incurred by the transferee, are an expression of diversion towards purposes additional to and different from those inherent to the business activity, as they entail the cessation of the indispensable requirement of inherence between costs and business activity.

This headnote highlights how subjective non-existence can lead to a broader interpretation of the crime in question. It is not merely about verifying whether economic transactions were actually carried out, but also about understanding whether the incurred costs were 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 the inherence between costs and business activity.

Practical Implications and Conclusions

The implications of this judgment are manifold and concern not only business entities but also tax and fiscal professionals. It is essential for those operating in the field to pay attention to the documentation and justification of incurred costs. Failure to do so risks incurring even severe criminal penalties.

• Verify the inherence of costs with respect to the activity carried out.
• Adequately document expenses incurred.
• Be aware of one's intentions in using 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 broaden the scope of the crime of fraudulent use of invoices. Awareness and transparency in economic transactions are therefore fundamental to avoiding legal issues.