Non -existent tax credits? The scam on building bonuses also starts without collection of credit, the Cassation has established that the aggravated scam on tax credits is already consumed with their fraudulent creation, without the need for use, strengthening the contrast to the fraud on the building bonuses.

The recent sentence no. 45868/2024 of the Court of Cassation marks a turning point in the fight against the fraud related to tax credits. According to the Supreme Court, the crime of aggravated fraud for the achievement of public disbursements is already consumed when a non -existent tax creditregardless of its use in compensation or its monetization.
This decision has important repercussions on the building incentives system, in particular on Superbonus 110%and could influence future checks on those who benefit from these concessions.

But what are the details of this sentence and how do the rules of the game change?

Advertisement – Advertising

The judicial case: an investigation into the fraud in the Superbonus

The investigation of the Messina Prosecutor’s Office brought to light an alleged fraudulent system focused onundue creation and sale of non -existent tax credits deriving from building interventions which, in fact, had never been performed. The suspect, together with other subjects, was accused of generating these credits through false attestations of works and to have subsequently sold them to third parties, including companies and financial institutions.

The accusations made by the judiciary concerned several criminal cases, including:

• Criminal association aimed at the commission of multiple crimes, including aggravated, false and self -laundering scam.
• Undue compensation of tax debts through the use of non -existent tax credits.
• Fraudulent transfer of tax credits to third parties, with the aim of monetizing them.

According to the investigators, the mechanism provided for the request for tax credits according to theart. 121 of the relaunch decree (DL 34/2020)which allows beneficiaries to transfer the credit accrued following renovation, energy efficiency or anti -seismic adaptation. However, in the case in question, the operations were based on false documentationwhich attest to building interventions that never occurred.

The accusatory system was based on the fact that, once generated, these credits were included in the tax drawers of the suspect and other connected companies, and then be offered to financial intermediaries and companies, which in some cases accepted them, while in others they rejected them. The final goal was to get immediate liquidity through the sale of credits, or to use them to compensate for their own tax debts or third parties.

In the face of these accusations, the defendant’s defense filed an appeal by cassation, claiming that Since there has been no monetization or compensation of credits, the state had not undergone any concrete damage. Consequently, in their opinion, the crime of aggravated fraud for the achievement of public disbursements could not have been configured, which requires the existence of an effective property damage against the State.

Advertisement – Advertising

The decision of the Cassation: the crime is consumed with the creation of fictitious credit

The Court of Cassation, with sentence no. 45868/2024, rejected the appeal of the suspect and established a very important legal principle: The aggravated scam for the achievement of public disbursements is consumed at the very moment in which a non -existent tax credit is generatedregardless of its actual use.

According to the Supreme Court, the artificial creation of the tax credit Through false declarations or certificates already configures damage to the state. This is because the credit itself, once generated, can be sold, monetized or used to compensate for tax debts, thus altering the disbursement system of public facilities and creating a financial risk for the tax authorities.

In particular, the Court stressed that:

• Art. 640-bis of the penal code, which governs the aggravated scam for the achievement of public disbursementsdoes not necessarily require that the credit is collected or used to configure the crime.
• The damage for the state is not limited to the actual loss of money, but also includes the Variation of public resources and the creation of unrelated credits that could be resold or compensated in the future.
• The building incentives system provided for by RELATE DECREE (DL 34/2020) provides for control mechanisms based on technical and tax documentation, but if these tools come manipulated through false certificatesthe mere fact of generating credit is sufficient to integrate the crime.

This interpretation of the Cassation represents a change of course Compared to previous jurisprudential guidelines, which deemed the concrete monetization or compensation of credit to configure the scam.

Advertisement – Advertising

The change of orientation of the Court of Cassation: a narrow on tax fraud

Sentence no. 45868/2024 marks a jurisprudential revirement compared to previous rulings of the Supreme Court. In the past, in fact, it was believed that the aggravated scam for the achievement of public disbursements was consumed only when the tax credit was actually collected or used in compensation.

An example of this setting is represented by the sentence n. 23402/2024according to which the damage for the state was made only with the concrete loss of public money, or when the credit came monetized by a financial intermediary or used to compensate due taxes. This meant that, until then, the crime could not be considered perfected.

With the new decision, however, the Cassation establishes that The fraud is already realized with the creation of fictitious creditsince this represents an alteration of the tax provision of tax incentiveswith potential negative consequences both for the tax authorities and for the integrity of the entire support mechanism to the building sector.

This new orientation has important practical implicationsas:

• Increases the responsibility of those who generate tax creditseven if they are never collected or used.
• Makes investigations and criminal disputes easierbecause the authorities no longer have to demonstrate that the credit has actually been monetized or compensated.
• Introduces a more severe criterion for the repression of tax frauddisincentive illegal behaviors already in the initial phase of credit creation.

It is a decision destined to influence The investigations in progress and future processes on fraud related to Superbonus 110%making it more difficult for those responsible to defend itself with the topic of the absence of immediate economic damage for the state.