Tax Crimes and Grounds for Non-Punishability: The Supreme Court with Judgment no. 31134/2025 Clarifies the Limits of Revocation in the Enforcement Phase

The landscape of tax criminal law is constantly evolving, and pronouncements from the Supreme Court play a fundamental role in defining the scope of application of the rules. The recent Judgment no. 31134, filed on September 17, 2025, by the Court of Cassation (President G. A., Rapporteur A. G.) fits into this context, addressing an issue of considerable practical and legal relevance: the possibility of revoking a final conviction for tax crimes during the enforcement phase, in light of new provisions introducing grounds for non-punishability. A decision that directly impacts the position of those convicted of specific tax offenses and the correct interpretation of criminal law over time.

The Regulatory Framework: Tax Crimes and New Grounds for Non-Punishability

At the heart of the discussion are the offenses provided for by articles 10-bis (Omission of withheld taxes due or certified), 10-ter (Omission of VAT payment), and 10-quater, paragraph 1 (Improper offsetting) of Legislative Decree no. 74 of March 10, 2000. These offenses, aimed at sanctioning serious tax non-compliance, were subject to a significant amendment introduced by art. 23 of Decree-Law no. 34 of March 30, 2023 (converted with amendments by Law no. 56 of May 26, 2023). This provision established that the aforementioned offenses are not punishable if the contested violations are regularized and the sums due are fully paid by the taxpayer before the judgment of the appellate court. This is a favorable rule intended to encourage voluntary regularization, but it raises questions about its retroactive application to judgments that have already become final.

The Supreme Court's Position: Inadmissibility of Revocation in the Enforcement Phase

The issue submitted to the Cassation Court concerned precisely the possibility for the enforcement judge to revoke a final and unappealable conviction, invoking the retroactive application of art. 23 of Decree-Law no. 34/2023. The Court, in the case involving F. V., declared the appeal inadmissible, establishing a clear and fundamental principle for legal certainty. Here is the summary that encapsulates the decision:

In matters of tax crimes, the enforcement judge cannot revoke a conviction pursuant to art. 673 of the Code of Criminal Procedure, by retroactively applying the provisions of art. 23 of Decree-Law of March 30, 2023, no. 34, converted, with amendments, by Law of May 26, 2023, no. 56, according to which the offenses referred to in articles 10-bis, 10-ter, and 10-quater, paragraph 1, of Legislative Decree of March 10, 2000, no. 74, are not punishable if the violations they contemplate are correctly settled and the sums due have been fully paid by the taxpayer before the judgment of the appellate court, as this constitutes a case of non-punishability and not an "abolitio criminis," nor a declaration of unconstitutionality of the criminal provisions.

This summary highlights how the enforcement judge, despite having broad powers, cannot act in the absence of a specific prerequisite provided for by art. 673 of the Code of Criminal Procedure. The Cassation Court emphasized that the new provision introduces a "ground for non-punishability," and not a true "abolitio criminis" (abolition of the crime), nor even a declaration of unconstitutionality of the criminal provisions. This distinction is crucial and determines the impossibility of retroactively applying the rule in the enforcement phase for final judgments.

Non-Punishability vs. Abolitio Criminis: A Crucial Distinction

To fully understand the scope of the judgment, it is essential to clarify the difference between "ground for non-punishability" and "abolitio criminis."

• Abolitio Criminis: Occurs when a subsequent law completely eliminates the criminal relevance of an act that was previously considered a crime. In such cases, art. 2, paragraph 2, of the Italian Penal Code establishes the principle of retroactivity of the more favorable law: no one can be punished for an act that, according to a subsequent law, no longer constitutes a crime. If there has been a conviction, its enforcement and criminal effects cease. It is in these cases that the enforcement judge, pursuant to art. 673 of the Code of Criminal Procedure, can revoke the judgment.
• Ground for Non-Punishability: Concerns situations where the act continues to be a crime, but the legislator decides not to apply the penalty in the presence of certain conditions (in our case, regularization and payment of the tax debt before the appellate court judgment). The ground for non-punishability, while favorable to the defendant, does not affect the illicit nature of the act. Consequently, it does not fall within the scope of art. 673 of the Code of Criminal Procedure, which allows for the revocation of a judgment only in cases of abolition of the crime or declaration of unconstitutionality of the criminal provision.

The Court therefore reiterated that art. 23 of Decree-Law no. 34/2023, while being a favorable provision, does not have the power to erase the crime, but only to avoid its punishment under certain conditions and in a specific procedural phase (before the appellate court judgment). Not being a true abolitio criminis, it cannot be applied retroactively to overturn a final judgment.

Conclusions and Practical Implications

Judgment no. 31134/2025 of the Cassation Court provides an important clarification for tax criminal law. It consolidates the principle of the intangibility of criminal judgments, except in exceptional cases expressly provided for by law, such as the abolition of the crime. For taxpayers and legal professionals, this means that the ground for non-punishability introduced by art. 23 of Decree-Law no. 34/2023 must be invoked in the procedural phases preceding the finalization of the conviction. Once the judgment is final, the possibility of invoking this provision to obtain revocation is precluded. This reiterates the importance of timely and careful defense in all phases of criminal proceedings, especially in a complex area such as tax crimes, where the dynamics between criminal law and tax law require specific and up-to-date expertise.