An investigation for sham tax credits can have immediate consequences: an account can be frozen, a credit can become unusable, and a tax dispute can also open criminal proceedings. The first doubt, however, should not only be how high the contested sum is. What matters is understanding whether the accusation concerns a non-existent credit, a non-entitled credit, or a use of compensation that did not comply with limits or conditions established by law.
I want to clarify this distinction. I will explain what makes undue compensation criminally relevant, what facts can affect a seizure, what changes if the debt is paid or paid in installments, and why the position of the company does not automatically coincide with that of each person involved. A tax report or a seizure decree require attention, but they do not replace the ascertainment of the fact and personal responsibility.
Rules Applicable in 2026
Legislative Decree 74/2000 applies in 2026. The consolidated act on tax penalties approved by Legislative Decree 173/2024 reorganizes and renumbers the rules, but its application is deferred to 1 January 2027 under Article 102. A current allegation therefore requires consulting the applicable provisions and checking the date of the conduct, without applying the new numbering prematurely.
“Sham credit” is not enough to define the crime. It is a common expression, but the law distinguishes between non-existent credit and non-entitled credit. The difference is not formal: the penalty provided, the possibility of invoking objective uncertainty, and the effects of full payment of the tax debt can change.
The credit is non-existent when the subjective or objective requirements demanded by the rule granting it are missing, in whole or in part. The same notion includes a credit built through fraudulent representations, false documents, simulations, or artifices. The credit is instead non-entitled, among other things, when it is used beyond the permitted limit, in prohibited ways, without further requirements demanded by the incentive measure, or without a fulfillment expressly provided for under penalty of forfeiture. Definizioni di crediti inesistenti e non spettanti, articolo 1
When Compensation Becomes Undue Compensation
The crime concerns the use of credit to avoid paying sums due. Article 10-quater penalizes anyone who uses non-entitled or non-existent credits for compensation, pursuant to Article 17 of Legislative Decree No. 241 of 1997, thereby avoiding the payment of sums due. Not every dispute regarding an incentive therefore constitutes a crime: it is necessary that compensation has effectively been carried out and that the relevant amount exceeds the foreseen threshold.
For non-entitled credits, the threshold is higher than 50,000 euros per year and the indicated penalty is imprisonment from six months to two years. For non-existent credits, the same annual threshold leads to a higher penalty, from one year and six months to six years. The threshold concerns the amount compensated in the year, not the abstract value of the credit indicated in a practice, in a transfer contract, or in accounting documentation. Indebita compensazione, articolo 10-quater
Qualification depends on the regulations of the single credit. If a business has truly accrued the credit but has used a share exceeding the annual limit, the problem is different from the hypothesis in which the requirements to accrue it did not exist from the beginning. Similarly, the lack of administrative fulfillment produces different consequences depending on whether the rule provides for it under penalty of forfeiture or not.
For non-entitled credits only, Article 10-quater excludes punishability when conditions of objective uncertainty exist regarding specific elements or particular qualities upon which the entitlement of the credit depends, also due to the technical nature of evaluations. This is not a formula that acquits every questionable choice: the uncertainty must be real, linked to the applicable rule, and distinct from an artificial reconstruction of facts.
Facts That Guide Investigation and Defense
The chronology of the credit is often decisive. It is necessary to separate the moment in which the credit would have accrued from its possible transfer to third parties and subsequent use in compensation. Expenses, works, supplies, declarations, tax communications, payment forms, and accounting records can concern different phases: an isolated document rarely resolves the entire dispute on its own.
If the accusation claims that the credit is non-existent, facts demonstrating the existence of the transaction and the requirements demanded by the law become central. If instead the credit is contested as non-entitled, the quantitative limit, the tax period, the method of use, an additional requirement, or a forfeiture compliance may assume relevance. The same invoice can have a different meaning according to the formulated charge.
The company's position must also be distinguished from that of natural persons. Directors, liquidators, delegates, and consultants may have different roles in the accrual, transfer, or use of the credit. The investigation must reconstruct who ordered the compensation, what powers they had, and what information they knew. The assignment entrusted to a consultant can be a relevant fact, but it neither automatically attributes nor excludes personal responsibility.
Documentation must not be altered or dispersed. It is useful to preserve originals, organize documents according to actual dates, and distinguish what already existed at the time of the transaction from what is produced after the start of the audit. Explanations given to the tax administration or investigators may also have relevance in criminal proceedings: for this reason, it is important that they are consistent with verifiable data.
Seizures on Accounts, Assets, and Tax Credits
Seizure is not equivalent to a conviction. It is a precautionary measure and can produce immediate effects on liquidity, available assets, or the use of credits. To understand its scope, one must first identify its purpose: is the freeze ordered to prevent further effects of the hypothesized conduct or is it aimed at a future confiscation by equivalent value? The two situations raise different questions.
For tax crimes, Article 12-bis provides for the confiscation of the price or profit in case of conviction or application of the penalty upon request; if direct confiscation is not possible, it may concern assets available to the offender for a corresponding value. The value of the freeze must remain linked to the hypothesized profit. A seizure cannot be read as an indistinguishable withdrawal from the entire assets without a relationship to the object of the contestation. Sequestro e confisca, articolo 12-bis
Regular payment in installments can affect seizure aimed at confiscation. Article 12-bis establishes that seizure is not ordered if the debt is being extinguished through payment in installments, even after conciliation or adherence to assessment, and the taxpayer is regular with payments. The rule does not operate, however, when there is a concrete danger of dispersion of the patrimonial guarantee, assessed also in light of income, asset, and financial conditions and the gravity of the crime.
When the provision concerns a credit still present in the tax drawer, it is necessary to distinguish the credit from the financial availability of the business. The decree must indicate its object and function. The existence of a freeze does not prove by itself that the crime has already been proven; the nature of the credit, the compensation executed, the contested amount, and the proportion of the measure remain to be verified.
Debt Payment and Installment Plans: Different Effects
Payment can exclude punishability only in precise cases. Article 13 concerns, among others, the undue compensation of non-entitled credits provided for by Article 10-quater, paragraph 1. If before the opening of first-instance trial, the tax debt, administrative penalties, and interest are fully extinguished, the rule provides for non-punishability; payment can also take place through conciliation procedures, adherence to assessment, or active repentance. Cause di non punibilità e pagamento del debito, articolo 13
The same cause does not concern the non-existent credit. Article 13 indeed recalls Article 10-quater only in its first paragraph, dedicated to non-entitled credits. If the charge is based on the second paragraph, payment does not allow to state automatically that the crime is excluded. This does not mean that the extinction of the debt is irrelevant: it can affect other profiles of the sanctioning treatment and procedural management, but with different effects.
If the debt is already being paid in installments before the opening of the trial, Article 13 allows a term of three months to extinguish the residual amount; the judge may extend it only once, for no more than another three months, if deemed necessary. Installment payment is not full payment. The status of the plan, the regularity of installments, the residual debt, and the procedural phase in which the plan is documented matter.
Which Alternatives to Consider Without Confusing Them
The first path concerns contesting the fact. If the credit has accrued and the required requirements are provable, the point is to reconstruct the transaction, incentive prerequisites, and use in compensation with precision. If the credit was not usable to that extent or with that modality, but essential requirements existed, the distinction between non-entitled and non-existent credit remains fundamental.
The second path concerns the effectively owed tax debt. Repentance, adherence, conciliation, and installment plans are different tools, with their own tax prerequisites. A settlement of the debt does not automatically replace the discussion on the nature of the credit or personal responsibility. At the same time, arguing that the credit was fully entitled and acting as if the debt were certainly owed requires an explanation consistent with the acts and the choice made.
In the early stages, it can be useful to collect the received decree, payment models, tax acts already notified, and documents attesting the origin, accrual, transfer, and use of the credit. The defense must keep three levels distinct: the existence of the credit, its tax treatment, and possible criminal responsibility. If you have received an investigative act or a seizure, you can contact me to frame these profiles without overlapping suppositions onto documentable facts.
Frequently Asked Questions
Can I be investigated if compensation was prepared by the consultant?
Yes, but their intervention does not decide responsibility alone. It is necessary to ascertain who ordered the use of the credit, what powers they had, and what information was available. The assignment to the consultant can clarify how compensation was formed, but it does not automatically prove either the estrangement or the responsibility of the investigated person.
When is the criminal threshold exceeded for a non-entitled credit?
The threshold is higher than 50,000 euros in the year. For Article 10-quater, the amount of the non-entitled credit effectively used in compensation to avoid paying sums due is relevant. The data does not necessarily coincide with the value of the declared incentive or with the sum overall contested by the tax administration.
Does payment of the debt always close the proceedings?
No, it depends on the qualification of the credit. Full payment within foreseen times can exclude punishability for the undue compensation of non-entitled credits. The same cause does not automatically apply to the undue compensation of non-existent credits, for which payment can have different effects but does not equate by itself to the exclusion of the crime.
Does payment in installments prevent preventive seizure?
It can affect seizure aimed at confiscation. The law requires that the debt be in the phase of extinction through installment payments and that the taxpayer be regular with payments. The exception of the concrete danger of dispersion of the patrimonial guarantee remains, which must be linked to circumstances considered in the provision.
Does blocking the credit in the tax drawer prove that the crime exists?
No, the block or seizure have a precautionary nature. They are not equivalent to a definitive decision on responsibility. The origin of the credit, its eventual utilization in compensation, the relevant amount, the hypothesized profit, and the personal contribution of those involved in the investigation remain to be verified.