Tax Observatory › Assessment and litigation › Evidence from criminal letters of request and bank investigations of professionals: Court of Cassation judgment No. 27439/2026

Evidence from criminal letters of request and bank investigations of professionals: Court of Cassation judgment No. 27439/2026

The Italian Court of Cassation confirms that documents obtained from Switzerland in criminal proceedings may support a tax assessment even where the principle of speciality is invoked, unless constitutional rights were infringed. It also reiterates that the presumption on bank withdrawals does not apply to self-employed professionals (lavoratori autonomi), and sets aside an appeal judgment whose reasoning was merely apparent, remitting the case for a fresh decision.

In judgment No. 27439, published on 21 October 2026, the Tax Division (Sezione tributaria) of the Italian Court of Cassation (Corte di cassazione) reaffirms two settled lines of case law that frequently arise in defending businesses and professionals. Evidence obtained abroad through a criminal letter of request (rogatoria) may be used in a tax assessment, even if the requested State attached the speciality clause, unless its acquisition infringed fundamental rights protected by the Constitution. The presumption on bank withdrawals under art. 32 of Presidential Decree 600/1973 does not apply to self-employed professionals, and the court ruling on the merits must classify the income assessed by category before applying it.

The case

Nine notices of assessment (avvisi di accertamento) for IRPEF (personal income tax), IRAP (regional tax on productive activities) and VAT, covering the years 2003 to 2011, had been issued to an individual on the basis of the records of criminal proceedings for bankruptcy offences (bancarotta) and misappropriation which, according to the taxpayer, included documents transmitted by Switzerland through mutual legal assistance. The taxpayer’s initial appeals had been dismissed at first and second instance. Of the thirty-three grounds of appeal, the Court upholds nine, sets the judgment aside and remits the case to the Corte di giustizia tributaria di secondo grado (Second-instance Tax Court) of Lombardy, sitting in a different composition.

Evidence obtained abroad in criminal proceedings

The taxpayer argued that the principle of speciality, laid down in the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (ratified by Law No. 215 of 23 February 1961) and in the agreement between Italy and Switzerland ratified by Law No. 367 of 5 October 2001, precluded the use for tax purposes of documents transmitted for criminal purposes. The Court dismisses this ground. In tax proceedings, an irregularity in the acquisition of evidence does not in itself render it unusable (inutilizzabilità); evidence becomes unusable only where a specific statutory provision so provides or where its acquisition infringed fundamental rights protected by the Constitution, such as personal liberty or the inviolability of the home. Italian tax law contains no general rule excluding unlawfully obtained evidence: the rule in art. 191 of the Code of Criminal Procedure applies only to criminal proceedings.

The Court refers to judgment No. 8452/2025, which had held usable documents obtained from the Republic of San Marino despite a clause prohibiting their use for purposes other than the investigation of the offences. In the case decided, an infringement of constitutional rights had not even been alleged, and this is what distinguishes it from the case of interlocutory order No. 13696 of 11 May 2026, by which the Court referred to its First President, for possible assignment to the Joint Divisions (Sezioni unite), a question in which the taxpayer had alleged a breach of art. 8 ECHR on the protection of the home.

It follows that an objection based solely on the irregularity of the letter of request is bound to fail; it can succeed only if the infringement of a constitutionally protected right is alleged and proven at first instance. The judgment does not examine art. 7-quinquies of Law 212/2000 (Taxpayers’ Charter), in force since 18 January 2024, which declares unusable any evidence obtained in breach of the law: the provision came into force after the notices under challenge were issued. In our view, for notices governed by the new provision, its effect on evidence transmitted from abroad in criminal proceedings remains an open question.

Bank investigations and self-employed professionals

The second principle concerns art. 32, first paragraph, point 2, of Presidential Decree 600/1973. The provision allows bank account data to be used as the basis of an assessment unless the taxpayer shows that they were taken into account or are irrelevant, and allows unrecorded withdrawals whose beneficiary the taxpayer does not identify to be treated as revenue where, under the current wording, they exceed EUR 1,000 per day and EUR 5,000 per month. In judgment No. 228/2014 the Constitutional Court declared the second sentence of the provision unconstitutional insofar as it contained the words “o compensi” (‘or fees’), introduced by art. 1, paragraph 402, of Law 311/2004, and the Court of Cassation reiterates that treating business and professional activity alike is not tenable even for earlier years. The judgment confines the presumption to business operators, without distinguishing between withdrawals and deposits; in our view, consistently with the constitutional ruling, the presumption on deposits still applies to self-employed professionals, while for withdrawals the tax office must prove by other means that they represent fees.

Among the adjustments upheld by the Regional Tax Commission (CTR, now the Second-instance Tax Court) were self-employment fees, capital gains on shareholdings and interest presumed as income from capital, all treated as a single block without distinguishing between the different categories. The Court of Cassation upholds the grounds on this point: the court on remand will have to allocate each amount to its income category and apply the presumption only where the law allows it. The same criterion applies to any reconstruction of revenue from bank movements.

Doubling of time limits, IRAP and reasoning

The Court confirms that, for tax periods before 2016, the doubling of the time limits under art. 43 of Presidential Decree 600/1973 and art. 57 of Presidential Decree 633/1972, in the former wording, applies where there are serious indicia of a criminal offence, even if the criminal complaint is subsequently dismissed (archiviazione) or filed after the assessment time limits have expired, and that notices served by 2 September 2015 remain valid under art. 2, paragraph 3, of Legislative Decree 128/2015, referred to in art. 1, paragraph 132, of Law 208/2015; the question of constitutionality is held to be manifestly unfounded. It nevertheless sets the judgment aside because the CTR had not examined the objection that, for 2003 and 2004, the offences could not arise in the abstract since the thresholds had not been exceeded. It reiterates that the doubling does not apply to IRAP, whose violations carry no criminal penalties, and upholds on this point the ground concerning the years 2003 to 2007. For the years 2008 to 2011 it sets the judgment aside because the CTR had given no reasons on the requirement of autonomous organisation under art. 2 of Legislative Decree 446/1997; that finding is for the court on remand.

Finally, an appeal judgment that merely refers to the pages of the Revenue Agency’s report, without examining the taxpayer’s detailed objections, has merely apparent reasoning (motivazione apparente) and is void, because it does not allow the logical path followed to be traced in the face of detailed and differentiated adjustments. On the coordination with criminal proceedings, see our commentary on the relationship between criminal proceedings and tax litigation.

In practice

• Counsel receiving a notice based on letter-of-request records checks, before filing the initial appeal, whether the acquisition affected the home, correspondence or personal liberty, or breaches a specific provision declaring such evidence unusable; the irregularity of the letter of request alone is not enough. The infringement must be alleged and documented at first instance, by filing the records of the criminal proceedings.
• For notices governed by art. 7-quinquies of Law 212/2000, the objection of unusability for breach of the law must be raised specifically, stating the provision breached in obtaining the evidence; the position should be reviewed if the question referred by order No. 13696/2026 is assigned to the Joint Divisions.
• A self-employed professional subject to bank investigations challenges the presumptive allocation of withdrawals and keeps supporting documents for deposits, to which, in our view, the presumption still applies.
• In initial appeals against multi-year assessments, the income category, expiry of the assessment time limit and, for IRAP purposes, the absence of autonomous organisation are raised separately for each year and each adjustment.
• In an appeal on points of law to the Court of Cassation, if the appeal judgment did not examine an objection, the defect should be raised both as a failure to rule on an issue raised (omessa pronuncia, art. 112 of the Code of Civil Procedure) and, in the alternative, as missing or merely apparent reasoning (art. 132, second paragraph, point 4, of the Code of Civil Procedure and art. 36, paragraph 2, of Legislative Decree 546/1992): in the case decided the first complaint was dismissed because the objection had been implicitly rejected, while the second was upheld. On appeal, objections not upheld at first instance must be expressly reasserted under art. 56 of Legislative Decree 546/1992.

Frequently asked questions

Can documents obtained from Switzerland for criminal proceedings be used by the tax authorities?

Yes, according to judgment No. 27439/2026, even where the principle of speciality is invoked. They remain unusable only if their acquisition infringed fundamental constitutional rights; the issue linked to art. 8 ECHR has been referred to the First President, for possible assignment to the Joint Divisions, by order No. 13696/2026.

For a professional, do withdrawals from a bank account count as undeclared fees?

No. Following Constitutional Court judgment No. 228/2014, the presumption on withdrawals in art. 32, first paragraph, point 2, of Presidential Decree 600/1973 applies to business operators only: the constitutional ruling removed the words “o compensi” (‘or fees’) only from the sentence on withdrawals. In our view, the presumption on unexplained deposits still applies to self-employed professionals.

Does the doubling of the time limits also apply to IRAP?

No. The Court reiterates that the doubling provided for in the former wording of art. 43 of Presidential Decree 600/1973 does not apply to IRAP, because the related violations carry no criminal penalties.

Sources

Italian Court of Cassation (Corte di cassazione), Tax Division, judgment of 21 October 2026, No. 27439 (Presiding judge Napolitano, Reporting judge Macagno), public hearing of 16 September 2026

Presidential Decree No. 600 of 29 September 1973, arts 32, first paragraph, point 2, and 43 (text in force on 26/10/2026, Normattiva)

Presidential Decree No. 633 of 26 October 1972, arts 51, second paragraph, point 2, and 57 (Normattiva)

Legislative Decree No. 128 of 5 August 2015, art. 2, paragraph 3 (Normattiva)

Law No. 208 of 28 December 2015, art. 1, paragraph 132 (Normattiva)

Legislative Decree No. 446 of 15 December 1997, art. 2 (Normattiva)

Law No. 212 of 27 July 2000, art. 7-quinquies (Normattiva)

Code of Criminal Procedure, art. 191 (Normattiva)

Legislative Decree No. 546 of 31 December 1992, arts 36 and 56 (Normattiva)

Constitutional Court, judgment of 6 October 2014, No. 228; Court of Cassation, 31 March 2025, No. 8452; Court of Cassation, interlocutory order of 11 May 2026, No. 13696 (as cited in the judgment)

Law No. 215 of 23 February 1961 and Law No. 367 of 5 October 2001 (Normattiva)