Subjectively Non-Existent Invoices: Acquittal – Court of Siena

With a judgment dated May 13, 2019, the Criminal Court of Siena acquitted an entrepreneur of the charge of fraudulent declaration through the use of invoices for subjectively non-existent transactions (Article 2 of Legislative Decree 74/2000). The case concerned the deduction, in the tax return for the year 2012, of costs related to sports sponsorships.

THE CONTEXT OF THE CHARGE

According to the prosecution, the invoices used by the entrepreneur, although issued by a company operating in the advertising and sports sector, were allegedly subjectively non-existent. The supplier, in essence, was considered an economic entity only formally active, lacking a real entrepreneurial structure and an operational headquarters.

THE OUTCOME OF THE TRIAL: THE FACT DOES NOT CONSTITUTE A CRIME

The Court fully accepted the defense arguments, recognizing three fundamental elements:

• The sponsorships were actually carried out, as extensively demonstrated by photographic documentation and testimonies acquired in court;
• The amounts subject to tax deduction were regularly paid, as proven by bank transfers;
• No evidence was found that the defendant was aware of the possible subjective fictitiousness of the invoicing company.

THE AFFIRMED LEGAL PRINCIPLES

1. Burden of proof on the subjective element

The tax crime provided for by Article 2 of Legislative Decree 74/2000 requires that the perpetrator acts with specific intent, i.e., with full awareness of the subjective falsity of the tax document. This psychological element can never be presumed, but must be proven by the prosecution beyond any reasonable doubt.

1. Difference between subjective and objective non-existence

The judge drew a clear distinction between objectively non-existent transactions (never occurred in reality) and subjectively non-existent transactions (actually occurred, but with interposed or non-operative parties). In the present case, the sponsorship took place regularly, with the display of the logo, advertising activity, and coverage of the sports event.

1. The effectiveness of the service excludes criminal relevance

Even in the presence of elements that could have raised suspicion of a tax anomaly of the supplier, the actual realization of the advertising service and the traceability of payments make the entrepreneur's conduct fiscally questionable, but entirely criminally irrelevant.

A RELEVANT RULING FOR BUSINESSES AND PROFESSIONALS

This judgment assumes fundamental strategic value. Firstly, it protects entrepreneurs and professionals operating in sports marketing. Secondly, it provides clear guidelines for legal and tax consultants regarding the deductibility of costs.

Finally, it represents a shield for the world of Italian SMEs, too often exposed to generic challenges related to the mere subjective non-existence of the supplier. The ruling of the Court of Siena reasserts the centrality of the principle of criminal legality and the right to evidence, preventing mere tax irregularities from automatically turning into unjust criminal convictions.