Shell Companies and Non-Existent Invoices: The Supreme Court (Judgment no. 16678/2025) Confirms Criminal Punishability

In the complex landscape of tax law, the distinction between legitimate tax planning and illicit tax evasion is often a subject of debate and interpretation. A recent ruling by the Court of Cassation, judgment no. 16678, filed on May 6, 2025, intervenes with clarity on a crucial aspect: the use of shell companies for the issuance or use of invoices for non-existent transactions. This decision, presided over by A. G. and with A. M. A. as rapporteur/drafter, offers fundamental guidance for professionals and businesses, firmly outlining the boundaries of tax legality and the serious consequences of violations.

The Regulatory Framework: Legislative Decree 74/2000 and the Cassation's Lens

The reference legislation for tax crimes is Legislative Decree No. 74 of March 10, 2000, which governs criminal and administrative sanctions in case of violation of tax regulations. In particular, Articles 2 and 8 of Legislative Decree No. 74/2000 are at the center of the issue examined by the Cassation. Article 2 sanctions fraudulent declaration through the use of invoices or other documents for non-existent transactions, while Article 8 punishes those who issue invoices or other documents for non-existent transactions. Both offenses are aimed at combating tax evasion through the creation of a fictitious economic reality.

Case law has long debated the fine line separating tax avoidance (legitimate, as it is based on exploiting regulatory loopholes or choosing the less burdensome path among legal options) from tax evasion (illicit, as it aims to conceal or alter the taxable base through fraudulent conduct). Judgment no. 16678/2025 falls precisely within this context, providing an unequivocal interpretation.

The Ruling of Judgment no. 16678/2025: A Crucial Clarification

The core of the Cassation's ruling is encapsulated in the following maxim, which represents a firm point for the application of tax crime regulations:

In matters of tax crimes, the establishment and use of shell companies for the purpose of issuing invoices for non-existent transactions or their use in tax returns are punishable conduct under Articles 2 and 8 of Legislative Decree of March 10, 2000, no. 74, as they denote a direct intent to evade, and cannot be attributed to the scheme of tax avoidance.

This statement is of fundamental importance. The Court of Cassation, presided over by A. G. and with A. M. A. as drafter, declares the appeal of the defendant S. C. inadmissible, confirming the decision of the Court of Appeal of Trieste of 27/02/2024. The maxim clarifies that the creation and use of corporate entities lacking real economic substance (so-called “shell companies”) cannot in any way be considered a form of tax avoidance. On the contrary, such actions, when aimed at generating or using invoices for transactions that never occurred, are unequivocally qualified as tax evasion and, as such, are criminally punishable under Articles 2 and 8 of Legislative Decree No. 74/2000.

The key elements of this interpretation include:

• The nature of the companies: they must be “shell” companies, meaning they lack a real organizational structure, actual economic activity, or genuine business purpose. Their sole objective is to create a veil for illicit transactions.
• The purpose of the transactions: the issuance or use of “invoices for non-existent transactions,” which do not correspond to real exchanges of goods or services.
• The intent: the Cassation emphasizes the “direct intent to evade.” This is not mere tax optimization but a clear intention to evade tax obligations through deception.

This judgment reinforces the principle that the abuse of corporate instruments for fraudulent purposes finds no protection in the legal system but, rather, exposes individuals to serious criminal liability.

Practical Implications and Prevention

The implications of this judgment are significant for all economic operators and their advisors. The Cassation reiterates that substance prevails over form: the mere formal existence of a company is not sufficient to legitimize its transactions if there is no real economic activity behind it. For companies, this means the need for careful due diligence in selecting business partners and rigorous verification of the genuineness of invoiced transactions. For professionals, the judgment serves as a warning to advise their clients towards maximum transparency and tax compliance, highlighting the serious risks associated with practices that may even remotely resemble the use of shell companies.

The penalties provided for by Articles 2 and 8 of Legislative Decree 74/2000 can be severe, including imprisonment, testifying to the gravity with which the legal system views conduct that harms state revenues and fair competition.

Conclusions: A Warning for Tax Legality

Judgment no. 16678/2025 of the Court of Cassation represents an important confirmation of the judiciary's hard line against tax fraud hidden behind the establishment and use of shell companies. There is no room for interpretations that attempt to classify such conduct as tax avoidance. On the contrary, the Court strongly reiterates that the evasive intent is evident and that the criminal sanctions provided for by Legislative Decree No. 74/2000 are fully applicable. It is a clear warning to all those operating in the economic sphere: tax legality admits no shortcuts, and transparency is the only way to avoid severe legal consequences.