Tax penalties and criminal nature: commentary on Order 29345/2025
In the complex landscape of Italian tax law, the boundary between administrative and criminal penalties often appears blurred. A recent ruling by the Court of Cassation, Order no. 29345 of 06/11/2025, revisits this crucial issue, emphasizing the protection of the taxpayer against the duplication of punitive proceedings. The case involved the State Attorney's Office and the taxpayer D. D., in a dispute that reached the highest court of legitimacy to define the exact nature of the penalties imposed.
The criteria of the ECtHR and the nature of penalties
The central issue addressed by the Supreme Court concerns the possibility of classifying as criminal a penalty that the national legal system defines instead as purely administrative. To do so, the Court of Cassation strongly invokes the so-called Engel criteria, developed by the case law of the European Court of Human Rights (ECtHR). According to these principles, it is not the label given by the national legislator that determines the nature of a penalty, but rather its punitive substance and the severity of the consequence for the citizen.
In particular, the Court established that three fundamental parameters must be evaluated: the legal classification of the offense under domestic law, the nature of the infringement itself, and the degree of severity of the penalty. If a tax fine is particularly high and has a purely repressive and deterrent purpose, it can be equated to a criminal penalty, thus activating the guarantees provided by the European Convention on Human Rights.
Regarding tax penalties, a formally administrative penalty may be considered criminal, for the purposes of applying the principle of substantive ne bis in idem, having regard to the criteria developed by the case law of the ECtHR, such as its legal classification under domestic law as criminal rather than disciplinary or administrative, its actual nature, and the degree of severity.
The commentary on this principle highlights a shift towards greater protection: the principle of ne bis in idem prohibits subjecting an individual to two proceedings (one criminal and one administrative) for the same act, if both proceedings are substantially punitive in nature. This orientation aims to prevent the State from exercising disproportionate sanctioning power, ensuring that the citizen is not penalized twice for the same conduct.
The impact on tax litigation
Order 29345/2025 is not an isolated case, but fits into a jurisprudential path already traced by important precedents (such as judgments no. 9076 and 9077 of 2021). The application of these principles has immediate practical implications for taxpayers involved in tax audits:
- Greater protection in cases of concurrence between administrative penalties and criminal proceedings for tax offenses.
- Possibility to challenge the illegitimacy of disproportionate penalties that violate Art. 4 of Protocol no. 7 of the ECHR.
- The need for the Tax Administration to evaluate the accumulation of penalties with extreme caution.
The reference to Art. 11 of Legislative Decree 472/1997 and to Articles 4 and 6 of the ECHR confirms that domestic law must always be read in harmony with supranational principles of equity and justice.
Conclusions
Order no. 29345/2025 of the Court of Cassation represents a fundamental piece for legal certainty in the tax sector. By reiterating that substance prevails over form, the judges confirmed that the taxpayer cannot be left without defenses in the face of administrative penalties that, by their magnitude and purpose, act as true criminal convictions. For professionals in the sector and for citizens, this judgment is a warning to always evaluate the compliance of tax proceedings with European principles of legal civilization.
