Crediti d'imposta "inesistenti" o "non spettanti": la Corte di Cassazione precisa le differenze qualificatorie

With sentence no. 34443, filed on last 16th of November, (in compliance with judgments no. 34444 and 33455, on the same date), the Supreme Court opens to a new orientation and distinguishes "non-existent" tax credits from the "not due" ones. In fact, the Supreme Court proclaims that to the first category - by virtue of art. 13, paragraph 5, third period, legislative decree n. 471/1997, as amended by Legislative Decree no. 158/2015 – belong those credits that lack, in whole or in part, the constitutive prerequisites that are necessary to give rise to them, since fraudulently indicated by the taxpayer or, in any case, through an unrealistic and untruthful representation of his accounting-balance sheet data in his tax return declaration, the non-existence of which cannot be found through automated procedures or formal checks. From this and, with respect to the "not due" credits, follow different time-related and sanctioning "effects", both administrative-tax related and criminal ones.