Inflated but paid prices do not constitute the offence of non-existent invoicing
The principle rendered in the margin of a dispute over intra-group transactions
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2' min read
If the goods or services indicated on the invoice correspond to those sold and the price is actually paid, even if incongruous and exorbitant, there is no partially non-existent invoicing: there is no divergence between the commercial reality and its documentary expression
This is, in short, the interesting principle expressed by the Court of Cassation, 3rd Criminal Section, in the sentence 26520 filed on 5 July, which confirms the criminal irrelevance of intra-group transactions carried out at prices higher than market prices, at least from the point of view of partially non-existent invoicing.
The case originated from the sale of agricultural products between companies owned by the same persons.
According to the prosecution, the agricultural company that sold the products, benefiting from the favourable tax regime, had blatantly over-invoiced the value of the goods, allowing the buyer to deduct higher taxable amounts. Hence the indictment and subsequent conviction both for issuing false invoices (over-invoicing) and for fraudulent declaration through the use of false invoices (article 2, Legislative Decree 74/2000)
In the appeal to the Court of Cassation, the defence, in a nutshell, argued that the invoices, even if considered to be of exorbitant value, out of market and uneconomic for the purchaser, could not be considered non-existent transactions. At most it was an abuse of law since, according to the prosecution, the 'inflated' revenues had been imputed to the agricultural company (set up ad hoc), and the costs to the commercial company.
