Preventive seizure of tax credits arising from building bonuses

1. The fact

   Numerous investigations conducted by the Guardia di Finanza have led to the seizure of billions of euros in tax credits originating from building bonuses. The context involves the creation of fictitious credits by entering data into the Revenue Agency portal regarding works never commenced or invoices for non-existent transactions. These credits were subsequently assigned to credit institutions or financial intermediaries, who purchased them relying on the formal regularity of technical certifications and compliance visas. The matter is currently before the Supreme Court, after several review courts confirmed the preventive seizure decrees issued by investigating judges at the request of the Public Prosecutors. The central issue is no longer the proof of the underlying fraud, which is under investigation in various proceedings, but whether the State can recover the economic value by freezing the credits held by entities that purchased them in good faith. Other aspects of the case, concerning corporate liability for fraud involving public grants, are addressed in dedicated articles in this series.

2. 

   The laws in play

   1. Art. 321 para. 1 c.p.p. (Preventive seizure to impede consequences): the provision allowing the judge to issue an order freezing assets pertaining to the crime where their availability could aggravate or prolong its consequences; in the case of bonuses, it prevents the credit from being used in tax offset (F24 form), thereby depriving the Treasury of liquidity.
   2. Art. 240 c.p. (Confiscation): provides for the forfeiture of assets constituting the product or profit of the crime; case law includes the tax credit itself in these categories as an economic utility stemming from the offense.
   3. Art. 121 Decree-Law 34/2020: governs the tax credit assignment mechanism, defining the procedure to convert tax deductions into circulating tax credits.
   4. Art. 122-bis Decree-Law 34/2020: introduces preventive checks and anti-fraud measures, establishing that assignee liability is limited to cases of willful misconduct or gross negligence; however, this limitation applies strictly under tax law and not necessarily under criminal law.

3. What the jurisprudence says

   Case law from the Supreme Court has clarified that a non-existent tax credit is not an autonomous asset that can be validly acquired by a third party, but rather constitutes the material object of the fraud. According to established jurisprudence (e.g., Cass. 40865-9/2022, Cass. 37138/2023), qualifying the credit as the product or profit of the crime justifies preventive seizure to impede further consequences under Art. 321 para. 1 c.p.p., rendering the third-party assignee's lack of involvement in the original crime irrelevant. The court noted that the protection of third parties in good faith under tax law does not preclude the application of criminal precautionary measures. The rationale is that a non-existent credit lacks legal existence as a protected circulating value: the State cannot be forced to suffer economic loss through the offsetting of a credit arising from an offense, even if the current holder did not participate in the fraud. The third party retains the right to bring a civil action against the transferor to seek compensation for damages.

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8. What it teaches professionals

   1. Documentary verification alone is no longer sufficient: legal counsel must recommend technical audits to verify the actual substance of underlying works before any assignment of tax credits is finalized.
   2. Assignment contracts should incorporate specific warranty and indemnity clauses covering the risk of criminal seizure, in addition to tax disallowance.
   3. In the event of a seizure, the defense strategy should focus on challenging the qualification of the credit as the product or profit of the crime, asserting the independent nature of the financial asset.
   4. Continuous monitoring of Supreme Court jurisprudence is essential, given the evolving interpretation of profit and product of the crime in combating tax fraud.

References: Articolo 321 Codice di Procedura PenaleArticolo 240 Codice PenaleArticolo 121 Decreto Legge 34/2020Decreto Legge 11/2023Cassazione Penale n. 40865-9/2022Cassazione Penale n. 37138/2023

Editorial oversight: Avv. Federico Papa·ICAMUpdated 17 September 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