The case examined by the Cassation
The ruling originates from an order by the Court of Messina, which he had rejected the review presented by a investigated to house arrest For several crimes including aggravated scam in competition for the achievement of public disbursements.
The suspect had challenged the ordinance, claiming that the alleged crime of fraud could not be used to consume in absence of effective economic damage for the state, given that the credits they had not been monetized or compensated.
Scam already with the generation of non -existent credit
The Cassation rejected the defensive thesis, clarifying that the aggravated fraud for the achievement of public disbursements It is consumed at the very moment in which a non -existent credit is created through the option for the sale. It is therefore not necessary that the credit is actually used or collected to configure the crime.
Through the fraudulent operations described in the contested order, non -existent tax credits have been generated, based on deduction rights without any prerequisite, in particular theeffective realization of the incentivized works. These credits, created without any real justification, they immediately become existing towards the State and are naturally intended to be used by compensation transferee.
The superbonus mechanism and fraud
Article 121 of RELATE DECREE (DL 34/2020) allows the beneficiaries of the Superbonus of:
- use the tax deduction directly;
- opt for the discount on the invoice;
- yielding the tax credit to third partiesincluding credit institutions or other intermediaries.
In cases of fraud, the tax credit was created In the absence of the conditions requested by the standard, such as the real execution of the incentivized works. The authors of the scam, exercising the option for the sale, generated an artificial credit that could be transferred to other subjects, including subjects in good faith.
The Cassation stressed that Fictitious credit immediately constitutes damage for the stateregardless of its actual use in compensation or collection.
Change of orientation
This sentence represents a change of orientation compared to previous decisions. In particular, the Court exceeds what was stated in sentence no. 23402/2024, which believed the damage for the state made only when the credits sold were monetized or used in compensation.
Now, however, the damage is identified in the creation of fraudulent creditsince this involves a distortion of the tax system and one variation of public funds from their original destination.
