Improper Offset and Tax Assumption: Criminal Cassation Clarifies with Ruling No. 30098/2025

In the complex and dynamic landscape of tax law, rulings by the Court of Cassation serve as indispensable beacons for guiding taxpayers and professionals. Ruling No. 30098 of 2025 by the Criminal Cassation provides fundamental clarification regarding the configuration of the crime of improper offset in cases of tax assumption. This decision, which concerned the defendant D. L. M., underscores the importance of correct interpretation of regulations and warns against practices that, while seemingly lawful, may conceal serious criminal offenses.

Tax Offset: Requirements and Limits

Offset is a tax instrument that allows for the extinguishment of tax debts using credits held against the financial administration. Article 17 of Legislative Decree No. 241 of 1997, which governs it, is clear: the offset must occur between the same parties to the tax relationship. This principle of subjective identity is the cornerstone of the system. Failure to comply with this condition can lead to the configuration of the crime of improper offset, provided for by Article 10-quater of Legislative Decree No. 74 of 2000, which penalizes the use of non-due or non-existent credits.

Tax Assumption and the Cassation's Position

Tax assumption is an agreement whereby one party (the assuming party) undertakes to pay a tax debt of another party (the assumed party). The question posed to the Supreme Court was whether the assuming party could use its own tax credits to extinguish, through offset, the assumed debt, which originally belonged to a third party. Ruling No. 30098/2025 provided a clear answer, reiterating that such an operation has criminal relevance.

In the context of improper offset, the payment made through the offset of tax credits for tax debts acquired as a result of tax assumption is criminally relevant, given that Article 17 of Legislative Decree No. 241 of July 9, 1997, does not provide for the case of assumption, requiring that the offset occur solely between the same parties to the tax relationship. (Case concerning tax offsets made before the entry into force of Article 1 of Law Decree No. 124 of October 26, 2019, converted, with amendments, by Law No. 157 of December 19, 2019, which expressly excluded the payment of tax debts through offset with the assuming party's credits).

The Cassation's summary is unequivocal: offsetting tax debts acquired through tax assumption is criminally relevant. The reason is simple: Article 17 of Legislative Decree No. 241/1997 does not provide for assumption as an exception to the principle of subjective identity. Consequently, if an assuming party offsets another's debt with its own credits, it is using credits improperly for that debt, thus constituting the crime of improper offset. It is crucial to note that the ruling refers to facts prior to the entry into force of Law Decree No. 124/2019, which subsequently explicitly excluded such a possibility, but the Court clarified that the principle of illegality already existed within the regulatory framework.

• Tax offset is strictly personal and requires identity between creditor and debtor.
• Tax assumption does not derogate from this principle for the purpose of offsetting debts.
• Offsetting assumed debts with one's own credits constitutes the crime of improper offset.
• Subsequent legislation (Law Decree 124/2019) has only strengthened and made explicit an already implicit prohibition.

Protecting Yourself from Sanctions: The Importance of Advice

Ruling No. 30098/2025 by the Criminal Cassation represents an important warning. It reiterates that tax offset operations must be managed with the utmost care and in full compliance with the principle of subjective identity. Any attempt to circumvent this requirement, even through assumption, can lead to serious consequences, including criminal relevance. To navigate the complex tax landscape safely and protect yourself from potential disputes and sanctions, it is essential to always seek qualified legal and tax advice, which can analyze each specific situation and ensure full compliance with current regulations.