Objectively non-existent invoices: acquittal – Court of Milan

With a judgment dated March 21, 2022, the Criminal Court of Milan – II Section fully acquitted an entrepreneur accused of the crime of issuing invoices for objectively non-existent transactions (Article 8 of Legislative Decree 74/2000), for the tax years 2015 and 2017.

According to the prosecution, the defendant had issued two invoices totaling over 265,000 euros, in order to allow another company to evade VAT through the undue deduction of tax related to transactions that never actually occurred.

Reconstruction of the facts and the acquittal outcome

The charges originated from an investigation by the Guardia di Finanza into an alleged fraudulent scheme based on the issuance of fictitious tax documents, the absence of real bank movements, and the non-existence of contracts or commercial agreements between the two companies involved.

However, the Court excluded the configurability of the crime, ordering the acquittal of the defendant. In particular:

• awareness of the non-existent nature of the transactions was not demonstrated;
• it emerged that accounting and tax management was entirely entrusted to third parties, unrelated to direct entrepreneurial activity;
• the judge held that the defendant did not contribute, not even by way of eventual intent, to the commission of the alleged act.

Legal principles affirmed in the judgment

Specific intent is an indispensable element

The ruling reiterates that criminal liability for issuing false invoices requires proof of specific intent: the intention to enable others to evade taxes, and intent cannot be inferred from mere accounting automatisms or objective liability.

The non-existence of the transaction must be proven beyond any reasonable doubt

The judge clarified that the mere non-payment of the consideration, the absence of bank traceability, or a written contract are not in themselves sufficient to constitute the objective falsity of the invoice, if not accompanied by unequivocal evidence of simulation.

No liability without effective management capacity

In the present case, the operational detachment of the defendant was recognized, who formally held the position of legal representative but did not exercise any decision-making power or directly manage the company's accounting.

A relevant judgment for criminal tax defense

The decision of the Court of Milan is part of the most recent jurisprudence on tax crimes related to false invoices, definitively clarifying that the mere formal holding of the position is not sufficient to establish criminal liability. The good faith of the subject and the fiduciary delegation to third parties must be carefully evaluated by the judge, applying the principle of favor rei also in verifying specific intent in the case of complex evasion schemes.