Administrative defects in tax acts not relevant in criminal proceedings

Administrative defects in tax acts and proceedings are irrelevant in criminal proceedings, since the judge has a duty to ascertain the facts independently. It follows that in criminal proceedings the judge may directly determine the tax evaded, even using data from a Pvc affected by defects committed during the administrative tax phase. The substance of the principle is reaffirmed by the Court of Cassation, Criminal Court III with the sentence 3250/2026.

Following the conviction at both instances of the legal representative of a limited company for failure to submit the declaration, the defence in its appeal in cassation argued, inter alia, that the person concerned had neither participated in the administrative phase of the inspection nor been able to assert his defence. This was because the Pvc had not been drawn up in respect of the limited company he represented, but in the context of audits carried out in respect of other companies.

Once indications of an offence had been found, the appellant complained that the Guardia di Finanza had failed to draw up an autonomous Pvc against him, resulting in an infringement of the right of defence, the impossibility of clarifying inconsistencies and indicating deductible costs, and the consequent overestimation of the tax evaded.

The Court of Cassation dismissed the appeal, pointing out that any pathologies of tax acts and proceedings have no relevance in criminal proceedings, in which the judge has the duty to independently ascertain the facts of criminal relevance.

In the above context, the prior administrative hearing (not carried out or carried out in an irregular manner) or the formal correctness of the tax acts do not entail any consequences, as the criminal court can use the Pvc as a source of evidence, not as a binding act.