Edited by Carlo Romano and Maurizio Foti
The Supreme Court, with ruling no. 5714, filed on March 4, 2025, once again addresses the issue of the effects of a final criminal acquittal judgment for tax crimes, in light of the new Article 21-bis of Legislative Decree no. 74 of 2000, introduced by Legislative Decree no. 87 of June 14, 2024. This provision grants res judicata effect in tax proceedings to a final criminal acquittal ruling issued in a trial with the formula “the fact does not exist” or “the defendant did not commit it.” Before this legislative innovation, a final criminal acquittal judgment was not binding in tax litigation but was merely an evidentiary element that the tax judge could freely assess along with other elements acquired in the trial.
The Facts of the Case
The dispute underlying the ruling originates from the alleged failure of two taxpayers to complete the RW section of their tax returns for the fiscal years 2004 to 2010. These omissions led, in the tax domain, to the issuance of tax assessments and sanction notices, while in the criminal domain, they resulted in charges of failure to declare income under Article 5 of Legislative Decree no. 74/2000.
The assessment by the Revenue Agency and the criminal prosecution were based on the assumption that the taxpayers were fiscally resident in Italy. However, they claimed to have their tax residence in Switzerland. During the tax appeal before the Supreme Court, the taxpayers submitted the final judgment of the Milan Court, which had acquitted them of the charge of failure to declare income for the years 2007-2010 with the formula “because the fact does not exist” (for the other years, the case was dismissed due to the statute of limitations).
Specifically, the Milan Court found that the evidence provided by the Revenue Agency and adopted by the Public Prosecutor was contradicted by evidentiary elements presented by the defense, which demonstrated a genuine connection with Switzerland. Given an uncertain evidentiary framework, the defendants were acquitted for the fiscal years 2007-2010 (pursuant to Article 530, paragraph 2, of the Code of Criminal Procedure).
The Jurisprudential Conflict and Referral to the Joint Chambers
The Supreme Court, identifying an interpretative conflict, has referred to the Joint Chambers the task of clarifying the scope of Article 21-bis of Legislative Decree 74/2000, particularly regarding the effects of a final criminal acquittal judgment in tax proceedings.
Currently, two opposing jurisprudential orientations exist:
- Extensive Interpretation: According to this approach, in compliance with the ne bis in idem principle and system coherence, the criminal judgment extends to the entire tax assessment, preventing the Revenue Agency from contesting in tax proceedings facts already excluded by the criminal court. This position has been expressed in rulings such as Cass. June 27, 2019, no. 17258; Cass. May 22, 2015, no. 10578; Cass. March 12, 2007, no. 5720.
- Restrictive Interpretation: This view limits the effect of the criminal judgment to tax penalties only, excluding its extension to the tax assessment itself. According to this perspective, the criminal judgment does not bind the tax judge, who must independently evaluate the available evidence concerning the tax assessment. This interpretation has been supported in rulings such as Cass. no. 3800/2025, Cass. no. 4916/2025, Cass. no. 4921/2025, Cass. no. 4924/2025, and Cass. no. 4935/2025.
Another issue referred to the Joint Chambers concerns the relevance, in tax litigation, of criminal acquittal judgments issued under Article 530, paragraph 2, of the Code of Criminal Procedure, which apply in cases of lack, insufficiency, or contradiction of evidence regarding the existence of the fact or the defendant’s responsibility.
Here too, two opposing interpretations exist:
- Restrictive Interpretation: It grants binding effect to the criminal judgment only in cases of full acquittal under Article 530, paragraph 1, of the Code of Criminal Procedure, excluding preclusive effects when the acquittal is based on an evidentiary deficit (Cass., Joint Chambers, no. 1768/2011; Council of State, no. 2509/2014).
- Extensive Interpretation: It recognizes the binding effect of the final criminal judgment even in cases of acquittal under Article 530, paragraph 2, considering that the evidentiary uncertainty established in the criminal trial should also influence the tax trial, preventing the confirmation of the tax claim (Cass. no. 23570/2024, Cass. no. 23609/2024).
Conclusions
The issues referred to the Joint Chambers are of fundamental importance for the balance between criminal and tax proceedings. The decision to be made, particularly on the first issue, will have a significant impact on tax litigation, affecting both taxpayers’ defense strategies and the Revenue Agency’s assessment methods.
If the Joint Chambers adopt an extensive interpretation of Article 21-bis, a final criminal acquittal ruling issued with the formula “the fact does not exist” or “the defendant did not commit it” could lead to the annulment of tax assessments based on the same facts. In this scenario, the criminal ruling would play a decisive role in tax proceedings.
Conversely, if the principle of autonomy between the two proceedings prevails, the tax assessment could be upheld even in the presence of a criminal judgment, which would only have binding effect regarding administrative penalties.
The anticipation for the Joint Chambers’ ruling is high, as their decision could resolve a significant jurisprudential conflict, clearly defining the scope of the effectiveness of the criminal judgment in tax litigation.
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