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Criminal acquittal after a final tax judgment: can a final assessment notice be reopened?

In the case decided by the Corte di cassazione (Italian Court of Cassation), the acquittal “because the fact does not exist” (perché il fatto non sussiste) came when the tax judgment had already become final (passata in giudicato), and it did not overturn the assessment. Article 21-bis of Legislative Decree No. 74/2000 does not apply where the judgment has already become final, revocazione (application to set aside a judgment on specific statutory grounds) is subject to strict requirements, and the inaction of the curatore fallimentare (insolvency practitioner in bankruptcy), which led to the final judgment, is irrelevant, because the bankrupt could have brought a challenge.

In the case decided by the Corte di cassazione (Italian Court of Cassation), the answer was no. The tax judgment upholding the avviso di accertamento (tax assessment notice) had become final (passata in giudicato) before the acquittal “because the fact does not exist”, which therefore could produce no effect; according to the Court, Article 21-bis of Legislative Decree No. 74/2000 applies to proceedings pending when it entered into force, on 29 June 2024. This is the reason for the decision, not a principle of law (principio di diritto): the only principle stated concerns the interruption of proceedings.

The decision and the case

Corte di cassazione, Fifth Civil Division, judgment No. 26021 of 1 October 2026 (public hearing of 14 April 2026, presiding judge Perrino, reporting judge Galasso), ECLI:IT:CASS:2026:26021CIV. A società in accomandita semplice (limited partnership) running a pharmacy had challenged the assessment notice for 2010, which was based on unexplained bank transactions. The initial appeal was dismissed; shortly afterwards the partnership and its general partner (socio accomandatario) were declared bankrupt, and the curatore fallimentare (insolvency practitioner in bankruptcy) did not appeal.

In the criminal proceedings, the Guardia di Finanza (Italian tax and financial police) revised the conclusions of its processo verbale (audit report) and reduced the unexplained transactions to nil, and the partner was acquitted “because the fact does not exist”. The revocazione sought by the insolvency practitioner (Article 64(2) of Legislative Decree No. 546/1992; Article 395, points 2 and 3, of the Code of Civil Procedure) was declared inadmissible, and the appeal against that ruling was dismissed. Contrary to the submissions of the Prosecutor General, the Court has now dismissed the appeal on points of law brought by the partnership and the partner, who had regained control of their assets (in bonis) after a concordato fallimentare (composition with creditors in bankruptcy).

The Court’s reasoning

The final judgment preceded the acquittal (on Article 21-bis, Corte di cassazione No. 23570/2024 and No. 936/2025), and the Court attached no weight to the fact that the application for revocazione was pending. The ne bis in idem principle does not concern acts imposing tax, which have no punitive purpose, and, as regards penalties, it does not protect the entity where the criminal proceedings concern the natural person, even if that person is its legal representative (Court of Justice of the European Union, 5 April 2017, Orsi and Baldetti, joined cases C-217/15 and C-350/15).

The audit report constitutes full proof (fede privilegiata) only of the facts it attests: the revision by the Guardia di Finanza is a fresh evaluation, and the falsity of evidence must be declared by a judgment or acknowledged by the party that used it. The partnership’s bank records could have been relied on in the ordinary course of the tax proceedings, and the seizure ordered in the criminal proceedings does not amount to force majeure, because copies may be requested from the criminal court (Articles 258 and 116 of the Code of Criminal Procedure).

If the insolvency practitioner takes no action, the bankrupt may challenge the act imposing tax (Corte di cassazione, Joint Divisions, No. 11287/2023) and, a fortiori, the judgment. The principle of law concerns the interruption of proceedings. Closure of the bankruptcy following court approval (omologazione) of the composition with creditors interrupts the proceedings. On the opening of the bankruptcy, interruption operates automatically (Article 43(3) of the Bankruptcy Law); on closure, where the insolvency practitioner has entered an appearance or is in default of appearance, it does not, and it follows the rules in Article 300 of the Code of Civil Procedure.

What changes for taxpayers and businesses

Relying on the outcome of the criminal proceedings exposes the taxpayer to the risk that the tax judgment becomes final first, because tax proceedings are not stayed while criminal proceedings are pending (Article 20(1) of Legislative Decree No. 74/2000). In this case the acquittal came more than two years after the tax judgment had been filed, by which time that judgment was already final. In our view, if the notice can be challenged on the merits, it is advisable to challenge it and pursue the proceedings, because it is in pending proceedings that the acquittal can take effect; the decision must be taken case by case, including whether to seek accertamento con adesione (settlement of a tax assessment by agreement).

While proceedings are pending, by contrast, Article 21-bis applies. The Corte costituzionale (Italian Constitutional Court), in judgment No. 50/2026, an interpretative judgment rejecting the question of constitutionality (sentenza interpretativa di rigetto), clarified its scope: the acquittal is binding even where it is delivered for insufficient evidence, save in two cases. Where the notice is based on specific statutory presumptions, including the bank transactions under Article 32 of Presidential Decree No. 600/1973, the acquittal is binding only if it establishes positively that the fact did not exist. Nor is it binding where it rests solely on the fact that evidence which may be used in the tax proceedings could not be used (inutilizzabilità) in the criminal proceedings.

A partner benefits from the annulment obtained by the partnership, unless the annulment results from the expiry of a time limit (decadenza) or from another cause that does not relate to the partner, or unless there is a final judgment to the contrary given directly against the partner (Corte di cassazione, Joint Divisions, No. 14815/2008).

In practice

• Initial appeal to the tax court within sixty days of service of the notice (Article 21(1) of Legislative Decree No. 546/1992); appeal against the judgment within sixty days of its service or, if it has not been served, within six months of its publication (Articles 51(1) and 38(3)); time limits are suspended from 1 to 31 August (Article 1 of Law No. 742/1969).
• Adesione: if the notice is preceded by a draft notice (schema di atto), the application must be filed within thirty days of communication of the draft or within fifteen days of service of the notice, and in the latter case it suspends the time limit for the initial appeal for thirty days. It may not be filed again by a taxpayer who has already filed it in respect of the draft or after the tax audit, or who has initiated the procedure in agreement with the tax office. Where there has been no contraddittorio preventivo (prior discussion with the taxpayer), it must be filed within the time limit for the initial appeal and suspends that time limit for ninety days. Bringing the initial appeal entails waiver of the application (Article 6(2), (2-bis), (2-ter), (2-quater) and (3) of Legislative Decree No. 218/1997).
• If the insolvency practitioner takes no action, the bankrupt should consider bringing a challenge in their own name; in liquidazione giudiziale (judicial liquidation, Article 143 of the Code of Business Crisis and Insolvency), it remains to be verified whether the Joint Divisions’ principle still applies.
• While proceedings are pending, the taxpayer’s representative should check that the criminal judgment was delivered after trial (dibattimento), that the acquittal uses the required wording (for companies, partnerships and their members, only “the fact does not exist”), that the facts are the same and that neither of the two limits set by the Constitutional Court applies. The representative then files the irrevocable judgment; before the Corte di cassazione, it must be filed no later than fifteen days before the hearing or the chambers sitting (adunanza).
• Extraordinary revocazione: within sixty days of the declaration of falsity or of the recovery of the document (Article 51(2)). For a judgment that was not appealed, those events must occur after the time limit for appealing has expired; if they occur earlier, that time limit is extended until sixty days from the event (Article 64(2) and (3)). The ground, the evidence and the date must be stated, failing which the application is inadmissible (Article 65(2)).
• If the bankruptcy is closed following a composition while the case is pending, interruption requires a declaration at the hearing or a written notification by the party’s representative (Article 40(2)).
• Penalties imposed on the natural person who is the defendant cannot be enforced while the criminal proceedings are pending, nor after a conviction. Following dismissal of the case (archiviazione), an irrevocable acquittal or a judgment terminating the proceedings (proscioglimento) on grounds that exclude the criminal relevance of the fact, they become enforceable, without prejudice to Article 21-bis, and the time limits for collection run from the notification to the tax office (Article 21(2) of Legislative Decree No. 74/2000). The entity’s liability is unaffected (Article 19(2)); unenforceability while criminal proceedings are pending applies to the entity only in the cases covered by Article 25-quinquiesdecies of Legislative Decree No. 231/2001 (Article 21(2-bis)).

Frequently asked questions

Does a criminal acquittal annul an assessment notice that has already become final?

In the case decided, no: the tax judgment had become final before the acquittal. According to the Court, Article 21-bis of Legislative Decree No. 74/2000 applies to proceedings pending when it entered into force, not to proceedings on a notice already concluded by a final judgment.

Does the revision of the Guardia di Finanza’s conclusions allow an application for revocazione?

As a rule, no. It is a fresh evaluation of the data, not evidence declared false, and the Guardia di Finanza is not a party to the tax proceedings; new documents must have existed beforehand, be decisive and have been unavailable owing to force majeure.

If the insolvency practitioner does not bring a challenge, is the bankrupt left without protection?

No. The bankrupt may challenge the act imposing tax and, a fortiori, the judgment where the insolvency practitioner takes no action; this is why the Court regards it as irrelevant that the unfavourable final judgment resulted from the insolvency practitioner’s inaction.

Sources

Corte di cassazione, Fifth Civil Division, judgment No. 26021 of 1 October 2026, public hearing of 14 April 2026, presiding judge Perrino, reporting judge Galasso, ECLI:IT:CASS:2026:26021CIV.

Corte costituzionale, judgment No. 50 of 23 February 2026 (filed on 13 April 2026), ECLI:IT:COST:2026:50, Official Gazette, First Special Series, 15 April 2026.

Article 21-bis of Legislative Decree No. 74 of 10 March 2000, inserted by point (m) of Article 1(1) of Legislative Decree No. 87 of 14 June 2024 (in force from 29 June 2024); Articles 19(2) and 21(2) and (2-bis) of Legislative Decree No. 74/2000, which with effect from 1 January 2027 become Articles 96 and 98 of the Consolidated Act on administrative and criminal tax penalties annexed to Legislative Decree No. 173 of 5 November 2024 (repeal: point (z) of Article 101(1); effective date of 1 January 2027: Article 102, as amended by Article 4(1) of Decree-Law No. 200 of 31 December 2025, converted into law by Law No. 26 of 27 February 2026); Article 20(1) of Legislative Decree No. 74/2000 (from 1 January 2027, Article 97 of the same Consolidated Act); Article 25-quinquiesdecies of Legislative Decree No. 231 of 8 June 2001.

Articles 119 and 131 and point (f) of Article 130(1) of the Consolidated Act on tax justice, annexed to Legislative Decree No. 175 of 14 November 2024; effective date of 1 January 2027 set by Article 4(3) of Decree-Law No. 200 of 31 December 2025, converted into law by Law No. 26 of 27 February 2026.

Articles 21(1), 38(3), 40(2), 51, 64(2) and (3) and 65(2) of Legislative Decree No. 546 of 31 December 1992 (from 1 January 2027, for revocazione, Articles 120 and 121 of the Consolidated Act on tax justice).

Articles 300, 327(1) and 395, points 2 and 3, of the Code of Civil Procedure; Articles 116 and 258 of the Code of Criminal Procedure; Article 1 of Law No. 742 of 7 October 1969.

Article 6(2), (2-bis), (2-ter), (2-quater) and (3) of Legislative Decree No. 218 of 19 June 1997, as amended by Legislative Decree No. 13 of 12 February 2024 (effective date: Article 41(2), notices issued on or after 30 April 2024).

Article 32 of Presidential Decree No. 600 of 29 September 1973.

Article 43(3) of Royal Decree No. 267 of 16 March 1942 (Bankruptcy Law), applicable to the proceedings governed by Article 390 of Legislative Decree No. 14 of 12 January 2019; for liquidazione giudiziale, Article 143(3) of Legislative Decree No. 14/2019.

Article 50 of the Charter of Fundamental Rights of the European Union; Court of Justice of the European Union, 5 April 2017, Orsi and Baldetti, joined cases C-217/15 and C-350/15.

Corte di cassazione, Joint Divisions, No. 14815/2008 and No. 11287/2023; Corte di cassazione No. 23570/2024 and No. 936/2025.