Tax Fraud and Invoices for Non-Existent Transactions: The Cassation Court's Clarification in Ruling No. 24130 of 2025

The landscape of criminal tax law is fraught with interpretative challenges, especially when it comes to defining the boundaries between a mere accounting irregularity and a genuine criminal offense. In this context, the recent ruling by the Court of Cassation, Third Criminal Section, with judgment No. 24130, filed on July 1, 2025 (hearing of May 23, 2025), offers a fundamental clarification on the crime of tax fraud, particularly concerning the issuance and use of invoices for objectively non-existent transactions. This decision, which involved F. F. as the defendant and Counselor A. S. as the rapporteur, partially annuls with referral the judgment of the Court of Appeal of Turin, outlining the configurability of the crime with greater precision.

The Case and the Principle of Law Stated by the Cassation Court

The central issue addressed by the Supreme Court concerned the invoicing of transactions for goods that, at the time of invoice issuance, had already been sold and were no longer available, or for assets not recorded in the seller's accounting records. This scenario raises questions about the nature of the represented transactions: are they "non-existent" for tax fraud purposes?

The crime of tax fraud under Articles 2 and 8 of Legislative Decree of March 10, 2000, No. 74, is constituted by the invoicing of transactions for goods already sold and no longer available or for assets not present in the seller's accounting records, given the objective non-existence of the represented transactions.

This legal principle is of extreme importance. The Cassation Court, with ruling No. 24130/2025, clarifies that non-existence is not limited to transactions that never occurred in material reality but also extends to those that, despite having an origin or reference to real goods, do not correspond to actual availability or correct accounting registration at the time of invoicing. In other words, if a company issues an invoice for the sale of a good that it has already sold to another party or that has never been present in its accounting records, such a transaction is to be considered objectively non-existent. Therefore, it is not just about completely false or "convenience" invoices for services never rendered, but also about those that, while referring to once-existing goods, represent a transaction no longer feasible or not correctly tracked, thus constituting the offense provided for by Articles 2 and 8 of Legislative Decree No. 74/2000.

The Regulatory Framework: Articles 2 and 8 of Legislative Decree No. 74/2000

Ruling No. 24130 of 2025 explicitly refers to Articles 2 and 8 of Legislative Decree of March 10, 2000, No. 74, which govern offenses related to income and value-added taxes. These articles are pillars in the fight against tax fraud:

• Art. 2 (Fraudulent declaration through the use of invoices or other documents for non-existent transactions): Punishes anyone who, with the intent to evade income or value-added taxes, indicates fictitious passive elements in one of the annual declarations, by using invoices or other documents for non-existent transactions. The key here is the use of false documents to alter the taxable base.
• Art. 8 (Issuance of invoices or other documents for non-existent transactions): Sanctions anyone who issues or releases invoices or other documents for non-existent transactions, with the intent to allow third parties to evade taxes. This article focuses on the act of creating the fraudulent document.

The Cassation Court, with this ruling, reinforces the interpretation that "objective non-existence" can also arise from a discrepancy between the accounting representation and the current factual reality, not being limited to a total absence of the good or service. This implies that the transaction does not necessarily have to be "false" in the most absolute sense, but can be "non-existent" if the good subject of the transaction is no longer available to the seller or has never been part of its accounting assets.

Practical Implications and Prevention for Businesses and Professionals

The clarity provided by ruling No. 24130/2025 has significant practical implications for businesses and professionals. To avoid incurring the crime of tax fraud, it is essential to pay the utmost attention to the correspondence between invoiced transactions and the factual reality. Here are some key points:

• Accounting Accuracy: It is indispensable to maintain impeccable accounting records that faithfully reflect the availability and movement of goods.
• Availability Verification: Before issuing an invoice for the sale of a good, it is crucial to ascertain its actual availability and that it has not already been sold to third parties.
• Specific Intent: Although the ruling focuses on objective non-existence, the configurability of the tax fraud offense always requires specific intent, meaning the purpose of evading taxes. However, proof of objective non-existence can be a strong indicator of awareness and intent to defraud.
• Due Diligence: Companies must implement internal due diligence procedures to ensure that commercial transactions are supported by a real and verifiable factual basis.

Conclusions

Ruling No. 24130 of 2025 by the Court of Cassation represents a firm point in the interpretation of the crime of tax fraud related to non-existent transactions. By reiterating that the invoicing of goods already sold or not present in accounting records constitutes objective non-existence, the Supreme Court offers a clear warning to all economic operators. Vigilance and correctness in accounting and tax management are not only regulatory obligations but essential tools to protect one's business from serious criminal consequences. For any doubts or for an in-depth analysis of one's situation, it is always advisable to consult with professionals expert in tax and criminal law.