The crime of false tax return concerns anyone who files an income tax or VAT return indicating revenues lower than the actual ones or nonexistent costs, with a significant tax impact and with the purpose of evasion. However, the doubt often arises beforehand: does a cost considered non-deductible, a contested accounting assessment, or an error in the accrual period of a revenue component truly transform a tax violation into a crime?
Not every tax audit is a criminal trial. I want to clarify which conditions must concur for Article 4 of Legislative Decree no. 74 of 2000 to apply, why the thresholds do not freely add up, and why the real or fictitious nature of a cost radically changes the problem. We will also see what matters when an error is discovered and what effects the payment of the tax debt can have.
When the false tax return is configured
The crime presupposes an annual return filed. Article 4 of Legislative Decree no. 74 of 2000 concerns returns relating to income taxes and VAT: the conduct consists in indicating active elements, such as revenues or fees, for an amount lower than the effective one or passive elements that are nonexistent, i.e., costs that do not correspond to a real, tax-relevant expense.
The false tax return is different from the omitted return. If the return is not filed, the case to be considered is different and has its own requirements. If, however, the return has been transmitted but contains untruthful data, it is first necessary to understand whether the correction concerns a truly existing element, an evaluative choice or, conversely, hidden revenue or a fictitious cost.
Article 4 operates outside the most serious cases of fraud. The provision expressly excludes situations attributable to fraudulent tax return by means of invoices or other documents for nonexistent transactions and to fraudulent tax return by means of other artifices. This distinction matters: the mere presence of a tax contestation does not allow choosing the criminal classification by itself, because false documents, simulations, and fraudulent means can lead to a different case.
As of September 21, 2026, the reference remains Article 4 of Legislative Decree no. 74 of 2000. The single text of tax penalties, which retackles the matter with a new numbering, has had its effectiveness postponed to January 1, 2027. The extension is relevant precisely to avoid prematurely applying a future provision instead of the currently applicable rule. The postponement is reported in the Official Gazette of February 28, 2026.
Both thresholds must be exceeded
The first threshold concerns the evaded tax. For the false tax return, the evaded tax must exceed 100,000 euros with reference to a single tax. Therefore, it is not enough to identify a higher overall tax claim: it is necessary to establish which tax is involved and what the difference is between the tax actually due and the declared one, according to the definition provided by the tax criminal law discipline.
The second threshold concerns the extent of the declarative falsehood. The active elements removed from taxation, even through the indication of nonexistent passive elements, must exceed 10 percent of the active elements indicated in the return or, alternatively, exceed 2 million euros. Here too, the exceeding must be effective: the law uses the criterion "superior", therefore the figure equal to the threshold is not enough.
The thresholds are cumulative, not alternative. Both the evaded tax exceeding 100,000 euros and the exceeding of the percentage threshold or the absolute one relating to elements removed from taxation must occur. A high undeclared revenue does not automatically integrate the crime if it does not also produce an evaded tax beyond the first threshold; similarly, a high tax is not sufficient if the second condition is missing.
Incomes and VAT must be kept separate. The evaded tax threshold refers to each individual tax. Therefore, it is not correct to automatically add income tax and VAT to reach 100,000 euros. The reconstruction must show, for each tax, the declared data, the considered effective data, and the effect of any correction.
The foreseen penalty is imprisonment from two years to four years and six months. The applicable provision identifies conduct, thresholds, and exclusions in the text of Article 4 of Legislative Decree no. 74 of 2000; the formulation of the article is reported in the official publication of the legislative decree. The penalty does not replace tax consequences: taxes, interest, and administrative penalties follow their own rules.
Non-deductible costs, nonexistent costs, and valuations: why they are not the same thing
A real but non-deductible cost does not coincide with a nonexistent cost. Article 4 establishes that, for the purposes of the false tax return, the non-incurrence or non-deductibility of real passive elements is not taken into account. In simple words, an expense truly incurred may not be deductible from taxable income, but its non-deductibility does not for this reason turn it into a criminally relevant fictitious cost.
The proof of effectiveness remains decisive. If a document represents a transaction that never took place, or a merely apparent expense, the issue is no longer the deductibility of a real cost. It is then necessary to distinguish between a nonexistent passive element and, when there are invoices or other documents relating to nonexistent transactions, hypotheses that can fall within the fraudulent tax return. The applicable rule, thresholds, and defensive framework change.
Competency and classification also have a specific discipline. The legislator excludes from the calculation of the case incorrect classification and the evaluation of objectively existing active or passive elements, when the criteria concretely used appear from the balance sheet or other tax-relevant documentation. The violation of accrual imputation criteria and, as mentioned, the non-incurrence or non-deductibility of real costs are also excluded.
These exclusions are not a pass for every correction. The documentation must make the adopted criterion recognizable, and the element must be objectively existing. It is not enough to call an invented or unverified datum an "evaluation". The practical difference is sharp: a contestation on the value attributed to an asset or on the correct period of deduction can remain in the area of tax corrections; the inclusion of a cost never incurred poses a different problem.
Valuations lower than 10 percent have an additional rule. Outside the hypotheses already excluded, valuations that, considered as a whole, differ by less than 10 percent from the correct ones do not give rise to punishable facts. Amounts included in this deductible allowance do not even enter the calculation of thresholds. The rule concerns valuations, it does not authorize indiscriminately subtracting omitted revenues or nonexistent costs.
The tax error is not enough: the purpose of evasion is required
The norm requires specific intent. It is not sufficient that the return is objectively inaccurate and that the thresholds are exceeded: whoever acts must do so for the purpose of evading income taxes or VAT. For this reason, a material error, an incorrect but non-intentional reading of the tax rule, or reliance on incomplete data can have tax consequences without proving, by themselves, the criminal requirement.
The absence of intent is not presumed from the error alone. One must distinguish between a generic explanation and facts that make it understandable how the declared data came into being. According to the case, available bookkeeping, consistency between records and return, internal communications, traceability of the transaction, and the existence of a criterion explicitly stated in documents can assume relevance. The point is not to find a defensive formula, but to verify whether a will to evade truly emerges.
Not even the tax assessment alone decides the criminal trial. The assessment can constitute an important element, especially to quantify the tax and reconstruct the facts, but in criminal proceedings, typical conduct, the exceeding of both thresholds, and the purpose of evasion remain to be proven. The 2024 reform also provides that final tax acts and irrevocable tax judgments can be acquired in the criminal trial for the purpose of proving the established fact; it does not mean that every tax outcome automatically turns into a conviction.
Correcting the return and paying: different effects at different times
Timely active repentance can exclude punishability. For declarative crimes, including Article 4, Article 13 of Legislative Decree no. 74 of 2000 links non-punishability to the full extinction of the tax debt, including penalties and interest, through active repentance. Regularization must intervene before the offender has had formal knowledge of inspections, audits, verifications, administrative assessment activities, or criminal proceedings.
Paying afterwards does not automatically produce the same effect. If formal knowledge of control activities has already intervened, payment cannot be presented as a certain cause of non-punishability pursuant to Article 13. However, effects that can be relevant remain: outside cases of non-punishability, the full extinction of the debt, including penalties and interest, before the closure of the first instance trial entails a reduction of the penalty up to half and the exclusion of the accessory penalties indicated by the norm.
Installment payment does not always equate to full payment. The discipline distinguishes the extinction of the debt from its installment payment phase. When the debt is in the process of being extinguished through installments before the closure of the trial, the law provides for communication and suspension mechanisms of the trial, with specific limits and conditions. Therefore, it is not convenient to confuse a payment plan, its regular execution, and the final effect of full payment.
The payment discipline must be coordinated with the concrete situation. The date of regularization counts, it counts if there has been formal knowledge of controls, and the amount actually paid, including tax, penalties, and interest, counts. The amendments introduced by Legislative Decree no. 87 of 2024 on Articles 13 and 13-bis can be consulted in the current text of Legislative Decree no. 87 of 2024 on Normattiva.
Which facts truly change the answer
The date and content of the return are the starting point. It is necessary to identify the tax period, the return actually transmitted, and the tax involved. From here one can understand whether the issue concerns income, VAT, or both and whether the contested data affect the annual return or different obligations, such as payments or compensations.
The nature of the transaction comes before its accounting name. A recorded invoice does not automatically prove that the cost is real; similarly, the tax recovery of a cost does not prove that the cost is fictitious. Contracts, orders, transport documents, payments, services performed, and accounting records can assume a different weight precisely because they help distinguish a real transaction from a merely apparent one.
Quantification must respect the two thresholds. A useful reconstruction separates the higher taxable amount from the tax effects and distinguishes evaluative components from omitted revenues and nonexistent costs. This avoids two frequent errors: treating every tax recovery as criminally relevant and calculating thresholds by including items that Article 4 expressly excludes.
If you have received an act, keep the dates and attachments. The notice, the report, the invitation, the adhesion or installment acts, and the documentation of the return can clarify what the contestation is and which procedural moment has been reached. If assistance is needed, you can contact me bringing these documents: they allow immediately setting up the distinction between tax profile, criminal profile, and possible regularizations.
Frequently asked questions
If the Revenue Agency contests a cost, do I always risk a crime?
No, a contested cost is not necessarily a nonexistent cost. If the cost is real but not inherent or not deductible, Article 4 expressly excludes these items from its calculation scope. The criminal profile can instead emerge if the cost does not correspond to an effective expense, provided that both thresholds are exceeded and the purpose of evasion is proven.
Are the 100,000 euro and 2 million thresholds alternative?
No, the two main conditions are cumulative. The evaded tax must exceed 100,000 euros for a single tax. Furthermore, the elements removed from taxation must exceed 10 percent of the declared active elements or 2 million euros. The second threshold has two alternative criteria, but does not replace that of the evaded tax.
Does an accountant's error automatically exclude intent?
No, but the error can be important to ascertain intent. The crime requires the purpose of evasion; therefore an objectively incorrect return is not enough. It is necessary to understand from which data the inaccurate indication arose, what role the instructions received, available documentation, and the conduct of the person who filed the return played.
Can I actively repent after receiving a notice or an audit?
Regularization remains relevant, but the effects change. For the cause of non-punishability under Article 13, active repentance and full payment must intervene before formal knowledge of inspections, audits, verifications, assessment activities, or criminal proceedings. After that moment, payment can have other effects provided by law, but it must not be confused with the automatic exclusion of punishability.
Does the installment payment of the debt close the criminal problem?
Installment payment alone does not equate to full extinction of the debt. It can affect the conduct of the trial and, if respected, accompany the final payment according to the rules of Articles 13 and 13-bis. To evaluate the concrete effect, the moment the plan was obtained, the regularity of the installments, and the procedural phase already reached count.
Essential regulatory references
To delve into the text of the case, the reference is Article 4 of Legislative Decree no. 74 of 2000, dedicated to the false tax return. For causes of non-punishability, penalty reductions, and effects of the payment of the tax debt, Articles 13 and 13-bis, amended by Legislative Decree no. 87 of 2024, are central. The discipline must be read together with concrete tax acts, without confusing a tax correction with the proof of a crime.