Liability of the transferor and false declaration of intent: an analysis of Order no. 29458/2025

In the complex landscape of Italian tax law, the management of VAT transactions with foreign entities often represents a treacherous terrain for businesses. Recently, the Court of Cassation has once again ruled on a matter of great practical relevance: the validity of declarations of intent and the liability of the supplier (transferor) in cases where the customer proves to be a fraudulent habitual exporter. With Order no. 29458 of November 7, 2025, the judges of legitimacy have outlined the boundaries of the due diligence required of economic operators.

The tax suspension regime and the declaration of intent

Article 8 of Presidential Decree (d.P.R.) no. 633 of 1972 allows so-called habitual exporters to purchase goods and services without the payment of VAT, up to a certain limit known as the "plafond". To avail themselves of this facility, the purchaser must submit a declaration of intent to the supplier. However, what happens if such a declaration is ideologically false? The case examined concerns the taxpayer M. F. against the A. (State Attorney General's Office), in a dispute arising from the disavowal of the non-taxable regime following an audit by the Regional Tax Commission of Naples.

The transferor's burden of diligence: formality is not enough

The Supreme Court has reiterated that the transferor cannot limit itself to a purely formal check of the declaration received. Although the supplier is not required to act as an investigator, they bear a burden of diligence that requires them to assess the consistency of the transaction. In particular, liability is triggered when the transferor ignores signals that should have aroused suspicion. The key points of the decision emphasize that:

• The fraudulent exercise of the right to avail oneself of the suspension regime is not permitted if elements of suspicion exist.
• The transferor must take all reasonable measures within their power to verify the reliability of the counterparty.
• Proof of irregularity may be provided by the Financial Administration also through simple presumptions (pursuant to articles 2727 and 2729 of the Civil Code).

The core of the decision is encapsulated in the following legal principle, which clarifies the rule of law applied:

In matters of VAT, regarding export sales under the tax suspension regime pursuant to art. 8 of d.P.R. no. 633 of 1972, if the declaration of intent proves to be ideologically false because it was issued by a subject lacking the status of a habitual exporter, the transferor is not permitted to fraudulently exercise the right to benefit from the enforceability limit related to said status of habitual exporter if they possess elements, including presumptive ones, sufficient to suspect the existence of irregularities, as the transferor bears a burden of diligence requiring the adoption of all reasonable measures within their power.

The importance of presumptive evidence in tax law

The crucial passage of the order concerns the use of presumptions. The tax authorities may challenge the exemption based on serious, precise, and consistent clues. If the supplier ignores obvious warning signs — such as, for example, a customer's business structure that is clearly inadequate for the declared volume of business — they risk being held liable for the failure to pay the tax. This orientation aligns with European case law, which denies the benefit of the VAT exemption to those who knew or should have known that they were participating in a fraud.

Conclusions on professional liability

In conclusion, Order no. 29458/2025 confirms a rigorous approach aimed at countering the undue use of preferential regimes. For businesses, this translates into the need to implement more stringent internal control procedures regarding their commercial partners. Good faith is not an abstract concept, but must be demonstrated through active and prudent conduct, aimed at verifying the existence of the subjective requirements of one's customers before issuing invoices without the application of VAT. The protection of the right to tax suspension is therefore conditional upon proving that one has acted with the utmost transparency and professional integrity.