Subjectively Non-Existent Invoices and Sponsorships: Acquittal – Court of Siena

With a judgment filed on July 30, 2018, and which became irrevocable on October 16 of the same year, the Court of Siena – Criminal Section fully acquitted an entrepreneur accused of the crime of fraudulent tax return by using invoices for subjectively non-existent transactions (art. 2 of Legislative Decree 74/2000).

THE FACT: CONTESTATION OF TAX FRAUD ON SPONSORSHIPS

The accusation concerned the use, for tax deductibility purposes, of invoices issued by companies linked to the automotive sponsorship sector for the tax years from 2006 to 2010. According to the accusation, the issuing companies lacked actual operations (subjectively non-existent) and the advertising services, such as the application of the logo on the livery of racing vehicles, would never have been rendered or would have been over-invoiced. The total contested value amounted to over 78,000 euros of taxable amount plus VAT.

THE ACQUITTAL: THE FACT DOES NOT EXIST

The Court accepted the arguments of the defense and acquitted the defendant because the fact does not exist. The judges ascertained that:

• The sponsorships were actually carried out, as proven by photographs, publications, contracts, and testimonies;
• Payments were made regularly through traceable bank transfers;
• The services, although referring to minor sporting events, are verifiable in documents and consistent with the contracts;
• The alleged subjective non-existence of the issuing companies was not proven beyond a reasonable doubt.

AFFIRMED LEGAL PRINCIPLES

1. Burden of proof on awareness

The tax crime requires that the entrepreneur is aware of the fictitious nature of the issuing entity. This subjective element (intent) cannot be presumed but must emerge from concrete and unequivocal elements.

1. Effectiveness of services and legitimate deduction

If the advertising service is documented, even with simplified methods such as photos or press reviews, the deductibility of the cost cannot be criminally disallowed, except for certain proof of simulation.

1. Insufficiency of tax assessment alone

The judgment reaffirms a cardinal principle: the elements emerging from tax assessments, even if detailed, are not sufficient alone to establish a criminal conviction.

Criminal liability requires certainty beyond a reasonable doubt (art. 533 c.p.p.), clearly distinguishing administrative offense from criminal offense.

A STRATEGIC DECISION FOR TAX DEFENSE

This ruling constitutes a relevant precedent for companies investing in sponsorships and for professionals facing challenges under Legislative Decree 74/2000. The Court of Siena has re-established the correct boundaries of responsibility, valuing the good faith of the taxpayer and the economic reality of the operation over the formalisms of the assessment.