The unfaithful sworn statement is always a scam
The case examined by the United Sections concerned a maxi-fraud in the context of the Superbonus.
According to the complaint, the suspect had established and transferred to third parties a fictitious tax credit amounting to 965,250 euros through the false certification of the completion of structural and plant works that were never carried out, and therefore the sum had been seized. The seizure had been challenged and the review judges had accepted the appeal and downgraded the crime to that of undue receipt of public benefits, maintaining that the element of misleading the Revenue Agency which constitutes the fraud was missing.
The Supreme Court of Cassation overturned this thesis, placing emphasis on the nature of the activity of the qualified technician: the presentation of ideologically false technical certifications and conformity visas constitutes a real artifice or deception specifically aimed at misleading the Public Administration.
The misuse of controls: the State’s reliance on the professional’s signature
In fact, when certification is requested, the tax authorities do not simply record a declaration from the taxpayer, but insert the request into a complex documentary procedure regulated by law, in which the technical document constitutes the prerequisite for the recognition of the benefit.
In essence, the law allows the State to quickly recognize the tax benefit precisely because it legitimately relies on the documentary compendium drawn up by third-party and technically qualified professionals. Consequently, producing documents that are formally regular but materially or ideologically false serves precisely to neutralize and misdirect the Revenue Agency’s control system (including the suspension powers pursuant to art. 122-bis of Legislative Decree 34/2020). Fraudulent conduct which is sufficient in itself to constitute fraud, regardless of the greater or lesser diligence of the administration in verifying the cards.
The moment of damage, the crime is consummated with the acceptance of the credit
On this basis, the Court of Cassation has therefore established that it is not necessary to wait for the State to materially lose money through the tax compensation made by the last transferee for the crime to be considered “consumed”, but this happens at the same time as the first transfer is completed, i.e. when the communication of the option is sent to the Administration and the supplier (or the third transferee) accepts the credit through the Revenue Agency’s credit transfer platform.
At that precise moment, the fictitious credit becomes spendable and transforms into a fictitious liability burden on the Treasury. From that second, the crime is no longer just attempted, but actually committed and as such articles 640-quater and 322-ter of the Criminal Code are applicable, which allow preventive seizure aimed at confiscation by equivalent of the movable and immovable property of the suspect.
Therefore, upon presentation of false certifications, the State can immediately freeze the assets without having to wait for the outcome of the trial or the actual use of the credit by third parties.
Sworn statements and criminal liability: summary table
Here is the summary of the principles established by the Supreme Court on criminal responsibilities linked to the signing of certifications:
|
Conduct of the Professional |
Qualification error excluded by the Court |
Principle of law |
Direct criminal and financial consequences |
|---|---|---|---|
|
Signing false sworn statements/visa |
Treated as a mere “false declaration” or self-certification pursuant to art. 316-ter of the criminal code |
Configures a real artifice or deception capable of misleading the PA (art. 640-bis of the criminal code) |
Charge of aggravated fraud against the State |
|
Transmission of non-existent invoices |
Considered irrelevant until the next analytical check on the construction site |
Actively misleads the Tax Office’s system of automatic and preventive controls |
The crime exists even if the Administration does not carry out an on-site inspection |
|
Effectiveness of the technical signature |
Considered a bureaucratic formality subject to verification by the PA |
It represents a qualified act on which the State has legitimate reliance by law |
The falsehood overwhelms the reliability of the entire project documentary compendium |
|
Partial or omitted execution of the works |
Considered an “attempted” scam up to the point of material tax compensation of the credit |
The crime is committed upon acceptance of the transfer on the web platform |
The crime is perfected regardless of the future use or collection of the dues |
|
Issuance of the fictitious spendable security |
Considered a mere assumption of a future obligation without immediate damage |
It constitutes the creation of a passive item not due to the Treasury |
Immediate legitimacy of the seizure for equivalent of all the assets of the suspect |
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