Undue offsetting and non-existent IRAP credit: acquittal – Court of Como

With a sentence issued on November 30, 2020, the Criminal Court of Como acquitted an entrepreneur of the crime of undue offsetting of non-existent credits (art. 10-quater, paragraph 2, of Legislative Decree 74/2000). The accusation concerned the use in form F24 of a non-existent IRAP credit for over 203,000 euros, in order to evade tax payments.

The case: offsetting with an undue credit

According to the reconstruction by the Italian Revenue Agency, the accused had offset real tax debts with a fictitious credit deriving from a false IRAP declaration for the year 2013. The operation, if confirmed as fraudulent, would have constituted a significant tax fraud.

However, the Court dismantled the accusation, holding that:

• there was no certain proof of the accused's awareness of the falsity of the credit;
• the contested conduct had been determined by third parties (without professional qualifications) who, through a sophisticated scam, had deceived the accused himself.

The decision: acquittal for non-existence of the fact

The Judge excluded the entrepreneur's criminal liability. It emerged that the credit was indeed non-existent, but the accused's conduct was the result of a deception suffered by self-proclaimed consultants outside the authorized professional circuit. Lacking the subjective element of intent, essential for the tax crime, and the accused having derived no conscious advantage, a conviction could not stand.

The legal principles affirmed

1. Subjective element in the crime of undue offsetting

Criminal liability under art. 10-quater Legislative Decree 74/2000 requires proof of specific intent: it is necessary that the perpetrator acted with awareness and will to use an undue credit. Mere accounting irregularity, or induced error, is not sufficient.

1. Tax fraud by third parties excludes liability

In cases where the taxpayer has been deceived by external consultants and has acted in good faith, criminally relevant culpability ceases. The entrepreneur, in this scenario, is a victim and not an accomplice, even in the presence of objective tax damage.

1. Strengthened burden of proof

To configure undue offsetting, it is necessary to ascertain with rigor not only the non-existence of the credit, but also the subjective traceability of the illicit operation to the accused and its fraudulent purpose.

A strategic ruling for tax defense

The ruling by the Court of Como is of extreme importance for businesses that use tax offsetting via F24. It highlights how the taxpayer's good faith and proof of fraud suffered by third parties can exclude punishability, protecting the honest entrepreneur from the criminal consequences of accounting errors induced by unfaithful or abusive professionals.