Defence in criminal tax proceedings requires distinguishing the tax debt from the criminal allegation. I want to help you understand what checks to carry out if a tax return, an invoice or a failure to make a payment has become the subject of a challenge. The uncertainty may concern the calculation of the tax, the role you played in the decisions or the usefulness of paying the amount requested: these are related, but not interchangeable, questions.

In this guide I explain how to read the thresholds, which documents may clarify the conduct and why the timing of regularisation deserves attention. I will also examine the difference between challenging the existence of the offence, benefiting from a ground excluding punishment and obtaining a reduction of the sentence. The aim is to provide you with practical criteria to orient yourself, without anticipating conclusions that require examination of the case file.

Which rules to consider and where to start

As at the reference date of 16 September 2026, the Legislative Decree 74/2000, with the applicable amendments, remains central to these assessments. The consolidated text of administrative and criminal tax penalties, approved by Legislative Decree 173/2024, has been published, but the application of its provisions has been postponed until 1 January 2027. This is established by Article 4 of Decree-Law 200/2025, in the coordinated text. Publication and applicability, therefore, do not coincide.

Before considering a defence option, I would read the allegation in its precise wording: what conduct is attributed, for which tax period, to which person and on the basis of which transactions. For older facts, I would also reconstruct the succession of the applicable provisions, without automatically applying a current rule to all previous tax years.

I would also keep two questions distinct: is the calculation correct? And which facts would demonstrate personal responsibility? An accounting report may be decisive for the first point, but cannot by itself clarify who knew of an irregularity, gave an instruction or had the opportunity to intervene.

Thresholds: which amount to compare and by which deadline

Inaccurate tax return: two cumulative financial conditions

For the inaccurate tax return under Article 4 of Legislative Decree 74/2000, two cumulative conditions are required: evaded tax exceeding 100,000 euros for a single tax and items removed from taxation, including through non-existent liabilities, exceeding 10% of the declared assets or 2 million euros. The provision also requires the purpose of evading tax and applies outside the fraudulent cases under Articles 2 and 3. The reference is Article 4, reproduced in the regulatory references of the Official Gazette.

The provision excludes from its calculation, among other things, the non-deductibility of genuine costs and specific classification or timing irregularities. I would therefore not equate a cost actually incurred but not deductible for tax purposes with a non-existent expense. This distinction concerns Article 4 and must not be turned into a general exemption for every challenge. ^[1]

To verify those limits, I would prepare a statement reconciled with the documents, separating tax, income components and tax years. I would ask for each step of the calculation to be made visible: which revenues were added, which costs were excluded and why. A total shown on the last page of the assessment would not, by itself, allow me to check these steps.

Failure to pay: amount, return and instalment plan

Articles 10-bis and 10-ter provide for thresholds exceeding, respectively, 150,000 euros for certified withholding taxes and 250,000 euros for declared VAT, for each tax period. The criminal-law deadline is 31 December of the year following that in which the relevant tax return was filed. The instalment plan provided for by Article 3-bis of Legislative Decree 462/1997 also matters; in the event of forfeiture, the thresholds for the outstanding debt are respectively more than 50,000 and 75,000 euros. These elements result from Article 1 of Legislative Decree 87/2024.

For this reason, I would not stop at the statement I requested instalments. I would examine the communication received, the basis for the extension, the payments actually made and any forfeiture. I would prepare a timeline placing these documents alongside the tax return: the point to clarify would be what situation existed on the relevant date, not merely how much remained payable when the defence began.

Intent and challenged transactions: what I would look for in the evidence

In an inaccurate tax return, the purpose of evading tax is an express requirement. The defence should therefore not be limited to discussing the figures: it must also address the elements from which the prosecution infers that purpose. The tax recovery and proof of intent answer different questions. ^[1]

To examine this aspect in greater depth, I would review the information available before the tax return: requests for clarification, drafts, instructions, attachments and reports of anomalies. I would compare the dates and content, without isolating a sentence from the rest of the correspondence. A message reporting an error that was subsequently corrected would require different reasoning from an instruction to retain data despite knowing it to be inaccurate.

If the allegation concerns invoices for non-existent transactions, I would distinguish between the reality of the transaction and the identity of the parties. Article 1 of Legislative Decree 74/2000 also includes in the definition transactions only partially carried out, consideration exceeding the actual amount and transactions referring to parties other than the actual ones. The document formally recorded in the accounts therefore does not resolve all these issues. ^[2]

However, I would not consider a generic challenge to the supplier sufficient either. I would look for evidence relating to the individual service: orders, deliveries, work products, technical correspondence and links with the activity carried out. Together with my staff, I would compare what those materials demonstrate and what they leave unresolved, avoiding attributing to a bank transfer or a contract a meaning broader than their content.

How I would assess documents, responsibility and chronology

I would start with the report and its attachments, not merely with the summary of the allegation. I would reconstruct which transactions had been selected, which replies had already been provided and which steps remained unsupported. This comparison would allow me to identify a specific issue for further examination, rather than preparing an undifferentiated response to the entire assessment.

For tax returns, I would request a copy of the filed return and electronic filing receipts, together with any amended versions. I would compare them with the preparatory schedules and the accounts. A draft retained in the management system might not correspond to the document actually filed: before discussing a figure, I would want to know which version is the subject of the allegation.

For the challenged transactions, I would reconstruct the process from the order to performance. A dated technical report might clarify what was produced; delivery documents might link a supply to a recipient; bank statements would help trace the payments. I would look for consistencies, but would also note contradictions and missing documents, without suggesting retrospective reconstructions presented as originals.

As regards personal involvement, I would examine appointments, delegations and handover records together with operational communications. An abstract description of the organisational chart would not be enough: I would look for who had access to the data, which problems had been reported and which decisions were documented. If there had been a change in management, I would place each fact within its relevant timeline.

To assess possible regularisation, I would finally collect documents received and proof of payment. I would separate the debt by tax year and reason, verifying that the receipts concerned precisely the amounts involved in the proceedings. I would place this reconstruction alongside the timeline of access, communications from the tax authority and criminal-proceedings documents.

Payment and defence: which alternatives I would distinguish

When payment may exclude punishment

Article 13(1) concerns failures to pay under Articles 10-bis and 10-ter and the undue offsetting of credits not due under Article 10-quater(1). It provides for the exclusion of punishment where full payment is made, including administrative penalties and interest, before the declaration opening the trial at first instance. It does not extend this rule to the offsetting of non-existent credits under paragraph 2. ^[3]

For the tax-return offences under Articles 2, 3, 4 and 5, paragraph 2 instead requires voluntary regularisation and full payment. Voluntary correction or filing must precede formal knowledge of the audits or proceedings referred to in the provision; for an omitted tax return, the provision also sets the limit of the return relating to the following tax period. These requirements are reproduced in the order of the Rome Court of 25 February 2026, without attributing to that order the status of a decision of the Constitutional Court.

Instalments and sentence reduction are not the same thing

If, before the opening of the trial, the debt is already being extinguished by instalments, Article 13(3) provides three months for the outstanding balance, extendable by the judge only once for no more than three months. Conversely, outside the exclusion of punishment, Article 13-bis permits a sentence reduction of up to one half and the exclusion of the ancillary penalties indicated by the provision where the debt is extinguished before the close of the trial at first instance. ^[4]

When assessing a plan, I would therefore compare the criminal-law objective and financial sustainability. I would not propose an instalment plan merely because it reduces the initial outlay: I would ask what resources could support the instalments and what benefit is intended. Before choosing, I would make explicit the difference between a route aimed at excluding punishment and one aimed at the sanctions to be imposed.

Challenge the allegation or regularise

If the documents called into question a premise of the allegation, I would consider a targeted defence on that point: the reality of the cost, reconstruction of the tax, content of the return or personal role. I would identify the evidence to obtain and the step requiring clarification, rather than basing the work solely on seeking a benefit linked to payment.

If, on the other hand, a debt requiring regularisation emerged, I would compare the conditions of the different options with the professional handling the tax aspects, if one had been appointed. I would not treat payment and defence as choices to be made without mutual communication: I would want to know the content of the documents to be filed, the amounts involved and their place within the procedural strategy.

Above all, I would avoid decisions based on general formulas: pay everything, await the final assessment or challenge every finding. Instead, I would seek a verifiable answer for each choice: what problem it addresses, which document supports it, what resources it requires and which issue it leaves unresolved.

Frequently asked questions

Do I have to add VAT and income taxes for the threshold applicable to an inaccurate tax return?

No: under Article 4, the threshold for evaded tax concerns a single tax. The other financial condition required by the provision must also be met. When checking the calculation, I would therefore keep taxes and items removed from taxation separate, without using the undifferentiated overall total claimed in the assessment as the reference. ^[1]

Which documents should I collect for an initial assessment?

First of all, I would collect the document received with all attachments, the relevant tax returns and the filing receipts. I would then add the documents linked to the challenge: evidence of the service for invoices, certificates for withholding taxes, and communications and receipts for payments. I would also ask that complete communications be preserved, not merely selected extracts.

If I pay after the audits have begun, can I still avoid punishment?

The offence alleged must be distinguished. For those referred to in Article 13(1), full payment before the opening of the trial is decisive; for the tax-return offences under paragraph 2, the prior voluntary nature of the regularisation also matters. I would therefore not apply the same answer to a failure to pay and to a fraudulent tax return. ^[3]

Is a bank-transfer receipt enough to prove that an invoice is correct?

To make an assessment, I would not stop at the bank transfer: I would look for what was actually performed, by whom and on the basis of which agreements. I would compare the bank movement with orders, deliveries, work products and correspondence. I would expressly identify which aspects were documented and which, instead, still lacked support in the available material.

If the accounts were managed by an adviser, what should I clarify?

I would focus above all on which information had been transmitted and which decisions were documented. I would examine the engagement, requests for clarification, drafts and communications concerning anomalies. I would not limit myself to indicating who physically maintained the accounts: I would reconstruct the path of the challenged data, from its origin through to the relevant tax return or payment.

Which check I would start with

For an initial assessment, I would start with the allegation, decisive documents and chronology, before discussing a payment option or procedural strategy. If you have received a document concerning a possible criminal tax offence, you can contact me to examine these elements and distinguish accounting issues from personal and criminal ones.