With Judgment No. 25167 of July 9, 2025, the Italian Supreme Court – Third Criminal Division – reiterated that, in order to establish the criminal offense of fraudulent tax return through the use of invoices for non-existent transactions (Article 2, Legislative Decree No. 74/2000), it is necessary to verify not only the awareness of the falsity of the transaction (i.e. general intent), but also the specific purpose of evading taxes.
In the case at hand, the director of a company had been convicted for having included in the tax return invoices related to a service contract deemed only formally such but actually used to conceal an illicit labor supply (i.e. “somministrazione illecita di manodopera”).
However, the Supreme Court found that the challenged ruling lacked any reasoning regarding the mental element of the offense, merely asserting the circumvention of contribution and contractual obligations, without any investigation into the taxpayer’s evasive intent.
Recalling a well-established legal principle (see Supreme Court Judgment No. 37131/2024), the Court emphasized that verifying the specific intent is essential, as it constitutes the qualifying subjective element of the offense. The mere use of invoices related to a fictitious contract – which masks a different economic operation – is not sufficient, in the absence of proof that the taxpayer knowingly pursued an undue tax saving.
In conclusion, the annulment with referral to the Court of Appeal of Perugia confirms the need, in tax criminal matters, for a rigorous assessment of fraudulent intent, which cannot be automatically inferred from the civil reclassification of the contractual relationship.
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