Cassation

Tax advantage for all with false invoicing

Convenience of both transferor and transferee recognised. Reversed burden of proof: it is up to the taxpayer to rebut the conclusion

by Giovanni Negri

8 November 2025

3' min read

Translated by AI

Versione italiana

Key points

The appeal
The orientation of the Supreme Court

3' min read

Translated by AI

Versione italiana

The use of invoices for objectively non-existent transactions leads to the relative tax advantage being divided equally between the transferor and transferee. Until proven otherwise at least, thus shifting onto the taxpayer, with relative reversal, the burden of proof. This is the principle of law crystallised in the conclusions of Order 29299 of the Tax Section of the Supreme Court of Cassation filed on 5 November.

The appeal

Eight years ago, the Regional Tax Commission of Lombardy, in its judgment 1083/33/17 of 15 March 2017, upheld the main appeal of the Inland Revenue Agency, rejecting the cross-appeal of a cooperative company in liquidation against the judgment 9686/05/14 of the Provincial Tax Commission of Milan, which had partially upheld the taxpayer company's appeal against four notices of assessment for IRES, IRAP and VAT related to the tax years 2006-2009.

As emerges from the judgment under appeal, the notice of assessment had been issued because of the issuance of invoices for transactions deemed objectively non-existent to another cooperative society.

Among the grounds of appeal, it was pointed out that the Regional Tax Commission had unlawfully endorsed the tax administration's argument that the tax advantage unlawfully obtained by issuing false invoices had been equally divided between the two cooperatives. A criterion, the defence argued, that would be unusable in the absence of suitable external evidence to support it or of known facts, leading to the conclusion that the assessment was unfounded due to the absence of a solid circumstantial basis.

The orientation of the Supreme Court

The Supreme Court emphasises first of all that a tax assessment, with reference to both direct taxation and VAT, may also be based on simple assumptions, provided that these are serious, precise and concordant, without the need for the tax authorities to provide 'certain' evidence.

Thus, the tax judge of the merits, called upon to assess the legitimacy and grounds of the taxable act, is required to judge, individually and as a whole, the presumptive elements provided by the administration, explaining in the grounds the results of his own judgement and only at a later stage, if he considers these elements to be characterised by gravity, precision and concordance, must take into consideration an assessment of the contrary evidence offered by the taxpayer.

In the case that came before the Court, the appellate court pointed out that the use of objectively non-existent invoices in relations between the two cooperatives was not the subject of contest and considered reasonable, in the absence of any other usable criterion, the fair distribution of the tax advantage obtained between the two companies.

The use of this reasonableness criterion is founded not only on a probabilistic basis, but also in positive law: see, by way of example only, the presumption of equality of shares of commoners, even in legal communion between spouses, the presumption of equality of fault provided for in the last paragraph of Article 2055 of the Civil Code, or the presumption of equality of shares in the case of liability of the partners of a partnership.

Hence the principle of law according to which, 'on the subject of the use of invoices for objectively non-existent transactions, the presumption of equitable sharing of the tax advantage between the transferor and the transferee is reasonable, finding its basis also in positive law, with the taxpayer bearing the burden of providing proof to the contrary'.

Giovanni Negri
Scheda autore
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