The Consummation of Tax Credit Frauds: The Orientation of the United Sections

1. The fact

   The case originates from a complex investigation conducted by the Palermo Public Prosecutor's Office, as reported by Il Sole 24 Ore, focusing on a system for creating non-existent tax credits for construction works never performed. At the center of the case is an entrepreneur subject to a preventive seizure of approximately 965,250 euros, aimed at equivalent confiscation. The prosecution posited that the suspect had misled the Tax Administration by issuing invoices for non-existent transactions and false technical certifications. The proceedings went through alternating phases: while the Judge for Preliminary Investigations (GIP) had initially authorized the seizure, the Palermo Review Tribunal set it aside. According to the Review Tribunal, the crime had not yet been consummated because the credits, although present in the tax drawer, had not been offset to reduce actual tax debts; therefore, it would have constituted a mere attempt, insufficient to justify a seizure of such magnitude. The issue thus reached the Court of Cassation, where the intervention of the United Sections was requested to resolve the conflict regarding the instantaneous or non-instantaneous nature of the fraud.

2. 

   The legal framework

   The pivotal provision of the entire case is Art. 640-bis c.p., which punishes aggravated fraud for obtaining public funds with imprisonment from two to seven years. This offense differs from ordinary fraud because the object of the deception concerns contributions, grants, or other disbursements provided by the State or other public entities. In parallel, Art. 316-ter c.p. (undue receipt of public funds) is relevant as a subsidiary provision that applies where actual ruses or deceits are absent, but which the United Sections deemed inapplicable in the presence of complex fraudulent conduct. From a technical and administrative perspective, Art. 121 of D.L. 34/2020 (Relaunch Decree) governs the circulation of tax credits, allowing the transformation of a tax deduction into a transferable credit. The violation of these rules, combined with Art. 8 of D.Lgs. 74/2000 regarding the issuance of false invoices, completes the regulatory framework relied upon by the prosecution to establish the financial damage suffered by the Treasury upon the creation of the fictitious title.

3. What the jurisprudence says

   Prior to the intervention of the United Sections, case law of the Supreme Court was divided into two main views. The first view held that the crime was consummated only upon offsetting, as only at that moment would an actual loss of revenue occur for the State. A second view, now endorsed by the Court, argued instead that damage already arose upon the entry of the credit into the economic circuit, given that the credit assumes the features of a genuine medium of exchange. The United Sections established that the crime of aggravated fraud is consummated at the moment of the acceptance of the credit on the Revenue Agency's platform by the assignee. According to the Court, at that precise moment, the credit becomes autonomous, transferable, and capable of discharging tax debts, causing a reduction in public assets as the State loses control over the title. The principle of law clarifies that misleading the Tax Administration is completed upon the formal recognition of the non-existent credit, rendering the timing of its actual use for offsetting irrelevant.

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8. What it teaches professionals

   The ruling of the United Sections obliges defense counsel and advisors to review litigation strategies and compliance models.

   1. A defense strategy centered on a mere attempt is precluded if the credit was accepted, shifting the focus to the absence of intent or an error of fact.
   2. Identifying the exact punctum temporis of consummation is essential for calculating the statute of limitations, which begins upon acceptance on the platform.
   3. For practitioners advising assignees, conducting thorough preventive due diligence becomes crucial to mitigate the risk of complicity or exposure to preventive seizures.
   4. A clear distinction must be maintained between Art. 640-bis c.p. and Art. 316-ter c.p., noting that the Supreme Court favors the more severe offense whenever documentary deceit or misrepresentation is present.

References: Articolo 640-bis Codice PenaleArticolo 316-ter Codice PenaleArticolo 121 Decreto Legge 34/2020Articolo 8 Decreto Legislativo 74/2000

Editorial oversight: Avv. Federico Papa·ICAMUpdated 19 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction