2023 ended with the filing of the twin sentences of the United Civil Sections of the Court of Cassation, no. 34419 and no. 34452 of 11 December 2023 (already commented on this blog), which had addressed the issue of the qualification of unduly offset tax credits, tracing the boundaries of the notions of non-existence and non-entitlement.
These rulings, which from a civil law point of view put an end to a series of conflicting decisions, had the ambitious objective of providing an interpretative line of such scope as to avoid a double track of judgment and a different classification of tax credits in tax and criminal proceedings.
Criminal case law, however, does not appear to have aligned itself.
The Third Criminal Section of the Court of Cassation, with sentence no. 6 of 2 January 2024, followed the interpretative direction opposite to that stated by the United Civil Sections, holding that the definition provided by art. 13 of the Legislative Decree. n. 471/1997, which requires, for the purposes of qualifying the non-existent tax credit, the existence of the dual requirement of the lack of the prerequisite and the non-detection of the same by means of the so-called automated controls, is to be considered extraneous to criminal matters and, for this reason, applicable exclusively in the administrative-tax context.
The criminal judges have clarified that “art.10 quater (n.d.r. del D.Lvo n. 74/2000) does not expressly refer, for the purposes of defining non-existent credits, to the aforementioned art. 13 even if it constitutes an unequivocal fact, underlined by the appellant, that both provisions have been modified by the same Legislative Decree. 158 of 2015. […] Precisely because the rules have been modified with the same legislative text, the failure to refer to art. 13 in the criminal case of undue compensation constitutes a strong argument in support of the inapplicability of the definition of non-existent credit contained in the tax legislation.”.
In criminal proceedings, therefore, the unduly compensated credit will be included among the non-existent ones, thus integrating the most serious criminal offence referred to in paragraph 2 of art. 10 quater D.Lgs. 74/2000, even if the non-existence can be verified through the automated controls carried out by the Financial Administration.
By ignoring the tax definition, the criminal judges have outlined a notion of non-existent credit that is broader than the administrative one, departing from the orientation indicated by the United Civil Sections.
