Judgment no. 26520 of 2024: The Configurability of the Crime of Fraudulent Declaration

The recent judgment no. 26520 of March 14, 2024, filed on July 5, 2024, by the Court of Cassation addressed a crucial issue for tax law: the configurability of the crime of fraudulent declaration through the use of invoices for non-existent transactions. The subject of the decision was the defendant M. R., accused of having issued invoices for the purchase of goods at an incongruous price, but which were actually carried out. The Court quashed the conviction without referral, clarifying important principles on the distinction between fraud and the legitimacy of commercial transactions.

Legal Context

According to Article 2 of Legislative Decree no. 74 of March 10, 2000, fraudulent declaration is constituted when invoices or documents for non-existent transactions are used. However, the Court highlighted that the indication of invoices attesting to commercial transactions actually carried out, even if at an incongruous price, does not automatically constitute the crime charged. This is a fundamental aspect, as the reality of the transaction must prevail over the discrepancy in price.

The Ruling's Maxim

Fraudulent declaration through the use of invoices or other documents for non-existent transactions – Purchase of goods for business activity at an incongruous price – Crime under art. 2 Legislative Decree no. 74 of 2000 – Configurability – Reasons – Case law. In the context of tax crimes, the indication, in the declaration relating to income and value added taxes, of invoices for the purchase, at an incongruous price, of goods used for business activity, does not constitute the crime under art. 2 of Legislative Decree no. 74 of March 10, 2000, if the commercial transaction was actually carried out and the price concretely paid, given that such invoices, by describing the executed transaction in accordance with reality, do not imply any divergence between commercial reality and its documentary expression. (Case in which the Court quashed without referral the conviction for the crime in question, issued in relation to the use, by a wine-producing company, of invoices concerning the actual purchase of grapes, attesting to costs much higher than the average selling price of such product).

Practical Implications and Conclusions

This judgment marks an important evolution in case law concerning tax crimes. Entrepreneurs will now have to pay particular attention to tax documentation, ensuring that every transaction is duly justified and documented. It is essential, in fact, that invoices reflect transactions that actually occurred. The consequences of an incorrect interpretation of the regulations can be severe, but this judgment helps to clarify that mere price incongruity is not sufficient to constitute the crime. The Court of Cassation has therefore reiterated the importance of evaluating the substance of commercial transactions above their form, a principle that must guide future decisions in this matter.