In the context of tax breaks such as the Superbonus, the configuration of fraud crime to the detriment of the State takes on critical importance. Only when the non-existent tax credits have been physically collected or offset, the economic damage necessary to qualify the crime materializes.
But what happens if these credits remain only virtual? And what are the implications for preventive seizure and equivalent confiscation?
We explore recent Supreme Court decisions on these issues, providing an overview of the regulations and practical implications.
The ruling of the Court of Cassation
The Court of Cassation, with the sentence no. 23402 of 11 June 2024addressed a crucial question regarding the tax credits generated through the Superbonus and the configuration of the crime of fraud against the State.
The specific case involved a certifying technician accused of having issued false certificates on the completion of contracted works, which had led to the creation of non-existent tax credits.
The contested order had provided for two types of preventive seizure. The first involved a sum of 29 thousand euroscorresponding to the fee received for the false certificates certifying the regular completion of the contracted works.
The second type of preventive seizure, however, was for the purposes of confiscation by equivalent and amounted to 546 thousand euros, equivalent to the profit from the crime. This profit was calculated on the proceeds obtained by the contracting company through the transfer of fictitious tax credits to third parties, the nominal value of which was almost 686 thousand euros.
The defense contested the order, arguing that the crime of aggravated fraud against the State (art. 640-bis of the penal code) could not be considered committed with the simple recognition of the tax credit by the Revenue Agency .
According to the defense, to set up the crime a concrete financial damageor the collection or compensation of credit.
The Court shared this interpretation, clarifying that the crime of fraud is committed only when there is an actual economic loss for the State.
The ruling also reiterated a fundamental legal principle: the preventive seizure for the purposes of confiscation by equivalent it is legitimate only in the presence of a committed crime. In the case examined, since the tax credits had only been created and not collected or offset, the crime could at most be configured as an attempted fraud.
The Court underlined that the recognition of the tax credit and its entry into the taxpayer’s tax drawer are not sufficient to constitute the crime of aggravated fraud, as they do not entail immediate and concrete financial damage for the State.
Consequently, the Court of Cassation annulled the order and sent the case back for a new examination, instructing the Court to verify the actual amount of the proceeds deriving from the assignments of the fictitious tax credits and whether these credits have been collected or used in compensation. Only such proceeds can be qualified as profit from the crime of aggravated fraud pursuant to article 640-bis of the penal code, thus justifying the precautionary measure of preventive seizure for equivalent.
This sentence represents an important jurisprudential precedent, strengthening the principle according to which, for the crime of fraud to be committed, the concrete realization of economic damage to the detriment of the State is necessary. Therefore, in the management of tax credits and tax breaks, it is essential to ensure that any precautionary measures are applied only in the presence of actual financial prejudice.
