Court of Cassation, Criminal Section III, Judgment no. 526/2025: Reflections on criminal liability for tax evasion

The recent judgment no. 526 of the Court of Cassation, issued on November 19, 2024, and filed on January 8, 2025, offers an important opportunity for reflection on criminal liability in cases of tax evasion, particularly concerning the role of de facto directors and the thresholds for punishability provided for by current legislation. The decision is part of a complex regulatory framework, governed by Legislative Decree no. 74 of 2000 and Legislative Decree no. 218 of 1997, and highlights some fundamental principles relating to tax assessment and the liability of heirs.

The Case and the Judgment of the Court of Cassation

The case in question concerns A.A., heir of B.B., who was convicted for failing to file the income tax return for the year 2015, with tax evasion exceeding 155,000 euros. The Court of Appeal of Salerno had confirmed the first-instance conviction, but the Court of Cassation upheld A.A.'s appeal, highlighting significant errors in the assessment of the punishability threshold and in the qualification as de facto director.

The Court of Cassation reiterated that the criminal judge is not bound by the amount of tax resulting from a settlement agreement and must carefully assess the existence of the subjective element of the crime.

Legal Issues Raised

The judgment addresses several legal aspects in detail, including:

• Exceeding the punishability threshold: The Court emphasized that a settlement agreement should not be automatically considered a cause for non-punishability, but the judge must assess whether the evaded tax exceeds the threshold of 50,000 euros.
• Qualification as de facto director: The determination of A.A.'s liability as a de facto director was questioned, highlighting that mere bookkeeping is not sufficient to attribute this qualification.
• Subjective element of the crime: The Court clarified that awareness of the filing obligation is not sufficient to constitute the specific intent of evasion, requiring a clear intention to evade taxes.

Conclusions

Judgment no. 526 of the Court of Cassation represents an important clarification on criminal liabilities in the tax field, emphasizing the need for careful and circumstantial assessment by the judge. The issue of the punishability threshold and the qualification of de facto director remain topics of great relevance for future jurisprudence and legal practice, requiring in-depth analysis and correct application of existing regulations. This case highlights the importance of adequate defense in tax matters, especially for those who find themselves managing business inheritances and are called to account for unfulfilled tax obligations.