News · Business taxation · – 1 October 2026
By judgment no. 26021 of 1 October 2026, the Tax Division (Fifth Civil Division) of the Corte di cassazione (Italian Court of Cassation) dismissed the appeal on points of law brought by a limited partnership (società in accomandita semplice) and its general partner against the appeal judgment that had upheld the declaration that their application for revocazione (application to set aside a judgment on specific statutory grounds) was inadmissible. The revocazione was directed at the first-instance decision that had dismissed the initial appeal against a notice of assessment (avviso di accertamento) based on unexplained bank transactions; the insolvency practitioner (curatore fallimentare) had not appealed that decision, which had therefore become res judicata. The partner was subsequently acquitted in the criminal proceedings “because the alleged facts did not occur” (perché il fatto non sussiste), after the Guardia di finanza (Italian finance police) had revised the conclusions of its audit report (processo verbale di constatazione). In the Court’s view, an acquittal delivered when the tax judgment was already final cannot have any effect in the tax proceedings. Art. 21-bis of Legislative Decree (d.lgs.) no. 74/2000, introduced by art. 1, paragraph 1, point (m), of d.lgs. no. 87/2024 and in force from 29 June 2024, applies only to proceedings still pending on that date (as already held in Cass., order no. 23570 of 3 September 2024) and does not override a judgment that has already become final. Nor does ne bis in idem assist the taxpayers: it does not cover the tax claim itself, which has no punitive purpose, and, as regards penalties, it does not protect the partnership where the criminal proceedings concern the individual who represents it.
The remaining route is revocazione. Judgments that have not been appealed can be set aside only on the grounds in points 1, 2, 3 and 6 of art. 395 of the Code of Civil Procedure (c.p.c.) (art. 64, paragraph 2, of d.lgs. no. 546/1992). The Court rules out false evidence, because the audit report constitutes full proof (fede privilegiata) only of the facts it attests, and the revision of its conclusions does not prove that it was false; falsity must be established by a judgment or acknowledged by the party that relied on the evidence. It also rules out force majeure, because the bank records could have been produced in the ordinary proceedings, and copies of documents seized in criminal proceedings can be requested. Mandatory self-correction by the tax authority (autotutela) is precluded by a final judgment in the tax authority’s favour (art. 10-quater, paragraph 2, of Law no. 212/2000); discretionary self-correction (art. 10-quinquies) remains, in our view, at the authority’s discretion and uncertain in outcome. While the tax proceedings are still pending, an acquittal “because the alleged facts did not occur” also has effect for the partnership and its partners (art. 21-bis, paragraph 3). The Corte costituzionale (Italian Constitutional Court), in judgment no. 50 of 13 April 2026, extends this binding effect to acquittals for insufficient evidence, except where the tax claim rests on specific statutory presumptions without positive proof that the alleged facts did not occur, or where the acquittal results solely from evidence that could not be used in criminal proceedings (inutilizzabilità) but is valid in tax proceedings. Whether the binding effect extends to the tax itself, and not only to penalties, remains to be decided by the Joint Divisions (Sezioni Unite) (Cass., Fifth Civil Division, interlocutory order no. 5714 of 4 March 2025).
Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.