Commentary on Judgment No. 46354 of 2024: Undue Receipt of Public Funds and Building Bonuses

Judgment No. 46354 of October 29, 2024, issued by the Court of Cassation, offers an important interpretation regarding crimes related to the undue receipt of public funds, particularly in connection with so-called "building bonuses." The central issue concerns the configurability of such a crime in the presence of a false self-declaration, and the Court has clarified some fundamental aspects.

The Regulatory Context

Italian law provides specific regulations for building bonuses, such as Decree-Law No. 34 of May 19, 2020, which introduced incentives for the renovation and energy efficiency of buildings. However, the application of these regulations has raised doubts and controversies, especially regarding the veracity of self-declarations submitted by users to obtain tax credits.

The Judgment and Its Significance

"Building" bonuses - Obtaining tax credit based on a false self-declaration - Crime of undue receipt of public funds - Configurability - Differentiating features from the crime of fraud under art. 640-bis of the Italian Criminal Code - Obtaining the tax credit related to the so-called "building" bonuses, based on a false self-declaration regarding the execution of works, constitutes the crime of undue receipt of public funds and not aggravated fraud under art. 640-bis of the Italian Criminal Code, as fraud lacks both the deceptive element, given that the Revenue Agency's control occurs after the disbursement, and financial damage to the State, which only occurs when the transferred credits are actually collected or offset, and is therefore a subsequent and contingent event compared to the undue acquisition of the tax benefit. (In its reasoning, the Court specified that the option of credit transfer still requires the issuance of invoices documenting expenses related to works or supplies actually carried out, even if, for tax benefits other than the so-called 110% "superbonus," it is possible to dispense with the presentation of work progress reports).

The Court, addressing the issue of the distinction between undue receipt of public funds and fraud, emphasized that in the specific case of a false self-declaration for building bonuses, two fundamental elements for configuring the crime of fraud are missing. Firstly, the deceptive element, as the Revenue Agency's control occurs after the credit has been disbursed. Secondly, financial damage to the State only occurs at a later stage, when the credits are actually collected.

Practical Implications and Conclusions

This judgment has significant repercussions for taxpayers and professionals in the sector, as it clarifies that the mere submission of a false self-declaration does not automatically constitute the crime of fraud. However, it is crucial to emphasize that the undue acquisition of a tax credit can still constitute the crime of undue receipt of public funds, with the related criminal sanctions. Therefore, it is essential for citizens and businesses to pay attention to the documentation and veracity of the declarations submitted.

In conclusion, Judgment No. 46354 of 2024 represents a significant step in Italian jurisprudence on crimes against public administration and offers food for thought on the importance of correctness in fiscal and bureaucratic practices.