Bonus facades, false credit must always be seized

The tax credit corresponding to a deduction accrued illegally, because the beneficiary has not carried out the work, must always be seized. Even if the transferee is in good faith and has not taken part in the scam

The Supreme Court returns to rule on scams related to tax bonuses, explaining the consequences that the offenses have on all the parties involved.

This time the Supreme Court, with its ruling 44647/2022, has regulated the case of the transfer of the credit corresponding to the bonus facade.

The ruling comes almost a month after a series of judgments concerning the Superbonus, all reached the same conclusions.

The case examined concerns a series of credits, corresponding to the bonus facade, that the beneficiary has transferred to a credit institution.

The transaction turned out to be false and the Judge for Preliminary Investigations ordered the seizure of the credits in the credit institution's tax drawer and the sums in the beneficiary's current account, because they correspond to an unfair profit.

The Ordinary Court, arguing that the credit institution, as the transferee, had not engaged in any illegal conduct and had not taken part in the scam, canceled the seizure of tax credits, instead confirming that of the sums unduly earned by the transferor beneficiary.

The Attorney of the Republic, on the other hand, insisted on the need to seize both the sums obtained from the transferor and the credits in the transferee's tax drawer.

The matter was then examined by the Supreme Court.

The defense emphasized the good faith of the transferee, who had not taken part in the scam, and that he could have used the credits acquired.

According to the defense, the beneficiary of the deduction (who in this case committed the wrongdoing) and the transferee, who acquires the credit in good faith, have different rights.

The right to use the sums acquired with the assignment contract, the defense argues, does not derive from the right to deduct because the beneficiary of the deduction waives his right. The transferee then acquires a new and independent right

The Supreme Court rejected the defense theories. According to the judges, false receivables cannot be allowed to circulate, regardless of the good faith of the transferee. Furthermore, for the Supreme Court, the transferee's right derives from that of the beneficiary, who can choose

The transfer of credit, added the Supreme Court, is in fact one of the alternatives available to the beneficiary of the deduction, so it cannot claim that the transferee acquires an original right.

The Supreme Court also explained that, to justify the seizure, there must be a link between the crime and the thing, while a link between the crime and its perpetrator is not necessary. Consequently, even the thing (in this case the credit) belonging to a person in good faith, but linked to a crime, must be seized

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