Invoices for Non-Existent Transactions: The Court of Cassation and the Validity of the Charge – Ruling no. 20913/2025

In the complex landscape of tax criminal law, the fight against tax evasion and fraud is an absolute priority for the Italian legal system. In this context, crimes related to the issuance and use of invoices for non-existent transactions play a central role, given their capacity to distort the market and deprive the State of significant resources. But what happens when, within a formal charge, invoices are listed whose falsity has not been expressly ascertained? The Court of Cassation, with its ruling no. 20913 of February 5, 2025 (filed on June 5, 2025), has provided a fundamental clarification that deserves the utmost attention.

This ruling, presided over by Dr. A. G. and authored by Dr. A. A. M., addresses a procedural issue of considerable importance, concerning the validity of the accusatory indictment and the principle of correlation between charge and judgment, outlining the boundaries within which an indictment can be considered legitimate even in the presence of specifics not yet fully proven.

The Regulatory Framework: Invoices for Non-Existent Transactions

The crimes of issuing and using invoices or other documents for non-existent transactions are governed by Articles 2 and 8 of Legislative Decree of March 10, 2000, no. 74. These provisions aim to penalize fraudulent conduct intended to create a false representation of economic reality, allowing, for example, the reduction of taxable income or the evasion of VAT through the indication of costs never incurred or revenues never received.

Article 2 punishes anyone who, in order to evade income or value-added taxes, indicates fictitious passive elements in one of the annual tax returns, by using invoices or other documents for non-existent transactions. Article 8, on the other hand, penalizes anyone who issues or provides invoices or other documents for non-existent transactions to others, so that they can use them for evasion purposes.

The Cassation Ruling no. 20913/2025: A Crucial Clarification

The central issue addressed by the Court of Cassation in the ruling under review concerned the validity of the charge (the "accusatory indictment") when, within the indictment, invoices were listed whose falsity had not been expressly contested or ascertained. The defendant, N. C., had appealed against the decision of the Court of Appeal of Milan of March 15, 2024, which had declared a previous appeal inadmissible.

The Supreme Court, with exemplary clarity, established that this circumstance does not undermine the validity of the charge. Here is the summary that encapsulates the principle expressed:

The indication, in the list contained in the indictment, of invoices whose falsity has not been expressly contested or ascertained does not affect the validity of the accusatory indictment for the crimes of issuing and using invoices or documents for non-existent transactions, pursuant to Articles 2 and 8 of Legislative Decree of March 10, 2000, no. 74, as it does not constitute any violation of the principle of correlation between charge and judgment, which is only violated in cases where there is a divergence between the fact charged and the fact deemed by the judge to constitute the crime.

This statement is of fundamental importance. It means that the charge, to be valid, does not require every single invoice listed in the indictment to have been preliminarily and individually ascertained as false in a preliminary phase. What matters is that the overall factual event charged, i.e., the issuance or use of invoices for non-existent transactions, is clearly defined. The lack of specificity regarding the falsity of each individual invoice does not nullify the indictment, as the charge concerns the entirety of the fraudulent conduct and not merely a documentary listing.

The Principle of Correlation Between Charge and Judgment

The core of the Cassation's decision lies in the interpretation of the principle of correlation between charge and judgment, enshrined in Article 521 of the Code of Criminal Procedure. This principle is a cornerstone of a fair trial, ensuring that the defendant is judged only for the facts that have been charged, avoiding procedural surprises and allowing them to prepare an adequate defense.

However, as highlighted by ruling no. 20913/2025, a violation of this principle occurs only when there is a genuine divergence between the factual event charged and the event deemed by the judge in the judgment to constitute the crime. This is not a divergence on secondary details or evidence, but on the essential core of the criminal act.

• The charge must be clear and specific regarding the crime alleged (issuance/use of false invoices).
• The list of invoices, even if not all explicitly ascertained as false, serves to contextualize the charge.
• A violation of the principle of correlation occurs only if the judge convicts for a fact completely different from the one charged, altering the nature of the crime or its historical identity.

In the case at hand, the Court reiterated that the indication of invoices whose falsity has not been expressly ascertained does not alter the "fact" charged – the use or issuance of fictitious tax documents for evasion purposes – but rather pertains to the proof of such facts. The defendant is placed in a position to defend themselves against the charge of committing the tax crime, regardless of the prior and precise proof of the falsity of each individual document listed.

Conclusions: Implications for Defense and Prosecution

Ruling no. 20913/2025 by the Court of Cassation offers important guidance for both prosecutors, in formulating indictments, and defense attorneys, in their procedural strategy. For the prosecution, the ruling confirms that exhaustive preliminary ascertainment of each individual invoice is not necessary for the validity of the indictment, provided that the criminal act is well-defined. For the defense, this means that arguments for the nullity of the accusatory indictment based on the lack of proof for each individual invoice may not be accepted, and the focus should rather be on proving the non-existence of the transactions as a whole or the absence of the subjective element of the crime.

It is therefore essential that legal professionals and businesses are aware of this jurisprudential interpretation to navigate the complex landscape of tax criminal law with greater confidence, always ensuring maximum precision in the charges and a defense attentive to the fundamental principles of our legal system.