With judgment no. 26950/2023, the Court of Cassation established that Article 7 of Law no. 269/2003, which provides for the exclusive responsibility of the company for penalties related to tax violations proper to the entity, undergoes an exception when the violation has been committed, through the interposition of the company itself, for the exclusive benefit of the legal or de facto administrator.
The case originates from the notification of a deed imposing penalties on the legal representative of a company, which had used false invoices to claim a tax credit related to diesel consumption. The act was justified with reference to Articles 2(2) and 9(1) of Legislative Decree 472/1997, the combined provisions of which provide, on the subject of tax penalties, for the joint and several liability of the company together with that of the material author of the violation (whether the manager or another natural person linked to the entity).
The taxpayer had therefore challenged the sanctioning act, on the assumption that Article 7(1), of Law 269/2003, which states, "administrative sanctions relating to the tax relationship proper of companies or entities with legal personality shall be borne exclusively by the legal person," had been violated. However, the first two levels of judgment both gave unfavorable verdicts to the taxpayer, who appealed before the Court of Cassation the ruling issued by the competent regional tax commission.
The taxpayer's appeal, based on a single ground in which the complaint of a multiplicity of defects of the deed imposing penalties converged, was declared inadmissible by the Supreme Court. However, the Court nevertheless focused on the analysis of the main issue raised by the appellant, consisting in the coordination between two apparently divergent sanction rules: the rules of Legislative Decree. 472/1997, which establish the aforementioned joint and several liability between the company and the material author of the violation, and Article 7 of Law 269/2003, which, on the contrary, provides for a single liability at the head of the entity while providing, in paragraph 3, that "in the cases referred to in this article, the provisions of Legislative Decree 472/1997 shall apply insofar as they are compatible."
The Court notes that the issue is not straightforward, but the solution can be found in the discipline of interposition in the tax relationship, as contained in Article 37, paragraph 3, of Presidential Decree 600/1973: on this subject, there is an authoritative precedent in jurisprudence (Court of Cassation judgment no. 23231/2022) in which it was affirmed that “on the subject of tax penalties, in the interposition of the "manager" uti dominus to the interposed corporation, pursuant to Article 37, paragraph 3, of Presidential Decree no. 600 of 1973, the tax relationship of the latter is not relevant, but the one that belongs directly to the interponent, as the actual possessor of the business income, so that, resulting as if the income were produced by him, the case falls outside the provisions of Article 7 of Decree Law No. 269 of 2003 and the violations, although formally of the collective entity, must be referred to its activity”. The case addressed by the aforementioned ruling had reference to the interposition of an occult/de facto administrator in the company, but the principle can be applied in all cases of tax violations committed solely for the benefit of a manager.
As a result, in the event of a tax violation committed by the company, to determine the party responsible for the penalties, the tax authority is required to investigate who benefited from the same violations: if they were committed for the benefit of the entity (even if the material author is a natural person), Article 7 of Law 269/2003 applies, and the penalties are imposed exclusively on the entity. Conversely, if the violation was committed solely for the benefit of the administrator (whether legal or de facto) who used the company as a mere "shield," the provisions of Legislative Decree 472/1997 come into play, and joint liability between the company and the natural person who committed or contributed to the violation applies.