Direct Confiscation of Profit in the Offense of Omitted VAT Payment: Cassation Ruling 30534/2025

In the complex landscape of tax and criminal law, VAT management represents one of the most delicate and scrutinized aspects. The omission of VAT payment is not merely an administrative violation but can constitute a genuine criminal offense, with severe consequences for the directors of legal entities. In this context, the recent ruling by the Court of Cassation no. 30534, filed on September 11, 2025, offers fundamental clarifications regarding the direct confiscation of the proceeds of the crime, outlining an interpretative path that deserves the utmost attention from professionals and businesses.

Omitted VAT Payment: A Serious Tax Offense

The offense of omitted VAT payment is governed by Article 10-ter of Legislative Decree of March 10, 2000, no. 74. This provision penalizes anyone who fails to pay, by the deadline for the advance payment related to the subsequent tax period, the value-added tax due based on the annual return, for an amount exceeding specific thresholds. This is a crime of endangerment, aimed at protecting the State's interest in tax collection and the proper functioning of the tax system.

Criminal penalties are often accompanied by forfeiture measures, such as confiscation, aimed at depriving the offender of the economic advantage derived from the illicit act. But what exactly is meant by "proceeds of the crime" in this context, and how can it be directly confiscated? It is precisely on this point that ruling 30534/2025, which involved Mr. D. L. P. as the defendant and President V. D. N. as the rapporteur, makes a significant contribution.

Direct Confiscation of Profit: The Principle Affirmed by the Cassation Court

The Court of Cassation, Third Criminal Section, in the ruling under review, focused on the definition of the object of direct confiscation in cases of omitted VAT payment committed by the director of a legal entity. The central issue was to determine what exactly could be considered proceeds of the crime and, consequently, subject to confiscation.

The Supreme Court established a crucial principle, clarifying that the proceeds of the crime are not necessarily identified with a specific sum "misappropriated" or "stolen," but rather with the economic availability that the perpetrator of the crime has retained due to the omission of payment. This availability, according to the Cassation Court, crystallizes in the positive balance held in the company's bank account. This balance, at the time the crime is perfected – which coincides with the filing of the VAT return for the relevant year – becomes the target of direct confiscation.

In the context of omitted VAT payment, the positive balance held in the company's bank account at the time the crime is perfected, coinciding with the filing of the VAT return for the relevant year, is directly confiscable as proceeds of the crime, when committed by the director of a legal entity. The burden of proof lies with the defense to allege specific circumstances from which it can be inferred that, on that date, there were no monetary resources or no liquid funds available to the taxpayer on the indicated account, or that the money received by the company or deposited into the account resulted from legitimate credits made subsequently.

This maxim from ruling 30534/2025, which annuls with referral the decision of the Court of Appeal, Taranto District Section, is of exceptional scope. It clarifies that the profit is not just the unpaid money, but the liquidity retained by the company due to this omission. The Cassation Court, referring to principles already expressed by the United Sections (such as ruling no. 31617 of 2015), reinforces the idea that the proceeds of the offense of omitted VAT payment are the monetary equivalent of the unpaid tax debt, which remained available to the entity or the director. This means that the unpaid sum, if present in the company account at the time of the declaration, is considered the direct benefit of the illicit act.

The Defense's Burden of Proof: How to Counter the Presumption

An equally significant aspect of the ruling is the allocation of the burden of proof. Once the omitted payment and the existence of a positive balance in the company's bank account at the time the crime is perfected are established, a presumption arises that this balance is directly attributable to the illicit proceeds. It is not incumbent upon the prosecution to prove that this specific money is the profit, but rather it is the defense that must provide contrary evidence.

Ruling no. 30534/2025 clearly lists the circumstances that the defense should allege to overcome this presumption:

• That, on the date the crime was perfected, there were insufficient monetary resources.
• That, on the indicated bank account, there were no liquid funds available to the taxpayer.
• That the money received by the company or deposited into the account resulted from legitimate credits made after the date relevant to the offense.

These points are crucial for the defense strategy. A general objection is not sufficient; specific evidentiary elements must be produced to demonstrate a different origin or destination of the funds, or the absence of actual liquidity attributable to the omission. This approach is in line with the general principles of equivalent confiscation (Article 321, paragraph 2, of the Code of Criminal Procedure and Article 240 of the Criminal Code), but here it applies to direct confiscation, making it easier for the prosecution to identify the object of the measure.

Conclusions: Practical Implications for Directors and Businesses

Ruling 30534/2025 by the Court of Cassation represents an important warning for company directors and all individuals obligated to pay VAT. The clarity with which direct confiscation of profit is defined and the burden of proof placed on the defense necessitate even more rigorous and transparent management of corporate finances. It is essential for businesses to maintain impeccable accounting and be able to demonstrate, at all times, the origin and destination of their cash flows, especially concerning tax obligations. Relying on expert consultants and adopting a conduct of tax compliance is more indispensable than ever today to prevent serious criminal and financial consequences.