False invoicing can involve both the person who creates the document and the person who uses it to reduce taxes. If you have received an allegation, you might wonder whether an error in the invoice is enough to constitute a crime, whether it matters that the work was actually performed, or what consequences follow an inspection by the Guardia di Finanza.
I help you distinguish a completely invented transaction from one that is only partially nonexistent or attributed to the wrong party. We will also see why issuance and use constitute different crimes, what the 100,000 euro threshold means, and what facts can support a defense. The answer does not depend solely on the document: the economic reality of the transaction, awareness of the falsity, the tax purpose, and the role concretely played all matter.
What rules apply in 2026
Legislative Decree 74/2000 remains applicable as of September 16, 2026. The Consolidated Tax Penalties Act, approved with Legislative Decree 173/2024, has been published, but the effective date of its provisions was postponed to January 1, 2027 by Article 4 of Decree-Law 200/2025, converted by Law 26/2026. The postponement can be consulted in the Official Gazette on Decree-Law 200/2025.
The common term is imprecise: the law speaks of invoices or other documents for nonexistent transactions. Article 1 of Legislative Decree 74/2000 includes transactions never carried out, those carried out only in part, documents with prices or VAT higher than the actual ones, and those indicating subjects different from the actual protagonists of the transaction.
Nonexistence can be objective when the goods have not been delivered, the service has not been rendered, or the price has been artificially increased. It is subjective, on the other hand, when the economic activity exists, but the supplier reported on the invoice does not coincide with who actually performed it. The distinction serves to reconstruct the facts, but both forms can assume criminal relevance, as summarized in the Supreme Court of Cassation report on tax offenses.
Not every irregularity is fraud. A descriptive error, a contractual divergence, or inaccurate accounting do not automatically become false invoicing. It must be ascertained whether the document consciously represents a transaction different from reality and whether the specific purpose of evading taxes or enabling others to do so exists.
Using and issuing fake invoices are different crimes
Article 2 concerns the user. The crime is configured when, in order to evade income taxes or VAT, a person makes use of nonexistent documents and indicates fictitious passive elements in a tax return. Accounting registration or keeping the invoice for evidentiary purposes qualifies the use, but the consummation of the offense requires the submission of the return incorporating the fictitious elements.
Simple receipt is not enough. If a suspicious invoice arrives at the company but is blocked, reversed, and does not flow into the return, an essential step of Article 2 is missing. Possible different conducts remain to be verified, but the presence of the document in the email cannot be automatically equated with its tax use.
Article 8 concerns the issuer instead. Anyone who issues or releases the document with the purpose of allowing a third party to evade income taxes or VAT is punished. The crime can be perfected without waiting for the recipient to submit their own return: however, issuance or release and the specific purpose of favoring another's evasion are required.
Multiple invoices can form a single crime when issued in the same tax period, according to Article 8, paragraph 2. Article 9 also separates the positions of the two parties: the issuer does not answer as an accomplice in the user's declaration crime, and the latter does not answer as an accomplice in the issuance. The rule does not protect those who materially contribute to the conduct on the same side nor does it exclude any additional crimes.
Penalties, 100,000 euro threshold and patrimonial consequences
There is no minimum crime threshold for Articles 2 and 8. The 100,000 euro threshold modifies the penalty range, it does not make lower amounts lawful. For the user, the amount of fictitious passive elements is considered; for the issuer, the untruthful amount indicated in the documents for each tax period counts.
The ordinary penalty is from four to eight years. If the relevant amount is less than 100,000 euro, the envisioned imprisonment is from one year and six months to six years. Since the rule uses the term "lower", an amount exactly equal to 100,000 euro does not fall within the mitigated range. Quantification must be based on the individual truly false components, avoiding confusing the total volume of invoices and the part not responding to the truth.
The risk can also concern assets. Article 12-bis of Legislative Decree 74/2000 provides for the confiscation of the profit or price of the crime and, when it is not possible to target them directly, of assets for a corresponding value. During investigations, a preventive seizure aimed at future confiscation can be requested: the provision does not equate to a conviction, but it can immediately impact asset availability.
Installment payment can limit seizure when the tax debt is regularly in the process of being extinguished and there is no concrete danger of the dispersion of asset guarantees. This discipline, introduced into the text of Article 12-bis by Legislative Decree 87/2024, requires a punctual verification of the taxpayer's position and the precautionary reasons indicated in the provision. The text of the modification is available on Normattiva, Legislative Decree 87/2024.
What the Guardia di Finanza checks
The check looks for the reality of the transaction. The invoice is compared with contracts, orders, intervention reports, transport documents, availability of goods, employed personnel, correspondence, and payment methods. A single element rarely exhausts the question: what matters is the overall consistency between the document, economic activity, and financial flows.
A traceable payment does not prove everything. The bank transfer demonstrates a transfer of money, but not necessarily the effective execution of the service. Likewise, the absence of a detailed contract does not in itself prove nonexistence, if other elements document the work with precision. It is necessary to verify who operated, with what means, in what times, and at what price.
Checks can extend to financial relations. Article 32 of Presidential Decree 600/1973 allows, in compliance with the envisioned authorizations, to acquire bank data and documents and to ask the taxpayer for clarifications. The related powers are indicated in the text of Article 32 on Normattiva. Therefore, returned payments, circular money transfers, or movements incompatible with the declared purpose can assume relevance.
Tax verification and criminal investigation remain distinct. The report of findings sets out the tax findings, but does not constitute a criminal conviction. When signs of a crime emerge, the public prosecutor must independently ascertain conduct, intent, and individual responsibilities. For this reason, tax observations, statements made, and debt strategy must be coordinated without confusing the two proceedings.
Decisive facts to set up the defense
The first point is economic existence. For a consulting service, for example, the produced content, preparatory exchanges, people who worked, and usefulness received count. For a supply, origin, transport, warehouse, and subsequent destination assume relevance. Documents created after the allegation do not replace evidence formed during the relationship.
The second point is awareness. The prosecution must prove that the user knew the falsity and pursued the purpose of evasion or that the issuer knew they were favoring another's evasion. A personal interest of the issuer does not exclude the crime if they are aware of the tax use intended by the recipient, according to the criminal review of the Supreme Court of Cassation of November 2024.
Subjectively nonexistent transactions require attention. The goods may have arrived and the service may have been performed, but it is necessary to understand who the real supplier was and what the recipient knew. Mere material effectiveness therefore does not close the allegation; on the contrary, the presence of commercial anomalies does not automatically prove conscious participation in fraud.
The third point is the personal role. In companies, it is not enough to identify who formally held the position. The signing of the return, access to accounting, relations with suppliers and consultants, payment authorizations, and the possible activity of a de facto administrator must be reconstructed. The position does not produce automatic responsibility, nor does it neutralize signs of concrete participation.
Alternative explanations must also be verifiable. Claiming to have relied on a collaborator or a consultant is not sufficient if communications and decisions show direct involvement. Conversely, internal procedures, effective checks, and misleading information received from third parties can impact the proof of awareness. The circumstances valued by jurisprudence are also illustrated in the criminal review of the Supreme Court of Cassation of April 2025.
Correction, payment and choices to consider
Intervening before checks can change the outcome. For the crime of Article 2, Article 13 provides for a cause of non-punishment when the debt, including penalties and interest, is fully extinguished through active remorse before the author has formal knowledge of accesses, inspections, verifications, assessment activities, or criminal proceedings. Therefore, correcting a registration without paying what is due is not enough.
After formal knowledge, the rule changes. Payment does not automatically produce the same non-punishment, although it can impact the penalty treatment, patrimonial consequences, and procedural options, should the prerequisites be met. The moment when the first official communication arrived must be reconstructed with precision, without relying solely on the date of the final report.
Issuance follows a different discipline. Article 13 does not include the crime of Article 8 among those extinguishable through anticipated active remorse. Payment made by the recipient of the invoice therefore does not automatically cancel the issuer's position. It can assume other effects, but it should not be presented as a certain criminal solution.
The first useful choice is to keep the evidence. Invoices, messages, orders, work files, payment data, and delivery documents must remain intact. Creating backdated contracts, altering descriptions, or deleting communications can compromise an otherwise defensible explanation and expose one to further allegations. Tax reconstruction, personal position, and procedural response must proceed coherently.
Frequently asked questions
Is a wrong invoice enough to be accused of false invoicing?
No, the error is not enough. A nonexistent transaction in the forms provided by law, a conduct of issuance or utilization, and the specific purpose of evading or allowing evasion are required. An inaccurate descriptive datum can have tax consequences, but does not automatically integrate the crimes of Articles 2 or 8.
Below 100,000 euro is the act not a crime?
The crime can still exist. For nonexistent invoices, the figure of 100,000 euro is not a threshold of punishability, but separates two penalty ranges. Below this amount, imprisonment from one year and six months to six years is provided; from 100,000 euro, the range from four to eight years applies.
If the service was performed, can the invoice not be false?
It can be under other profiles. The invoice can indicate an amount higher than the real one, document the service only in part, or attribute it to a subject different from the one who performed it. In the latter case, we speak of subjective nonexistence, and the identity of the true supplier and the recipient's awareness become central.
Does paying the tax debt close the criminal proceeding?
Not always. For Article 2, non-punishment requires active remorse and full payment before formal knowledge of checks or proceedings. After that moment, payment can produce other effects, but it does not automatically cancel the crime. Article 8 on issuance does not fall under the same cause of non-punishment.
What should I do after an inspection by the Guardia di Finanza?
Keep the documents in their original form and clarify what activity is underway, which years it concerns, and which operations are contested. Avoid improvised explanations, backdated reconstructions, or deletions. It is useful to immediately coordinate the tax response with the criminal position, because statements and documents can assume relevance in both proceedings.
How to orient oneself without confusing different problems
The invoice is only the starting point. The defense depends on the reality of the transaction, the moment of issuance or declaration, awareness, and personal role. If you have to face an inspection, a seizure, or a proceeding for false invoicing, you can contact us to frame these elements and the concretely available alternatives together.