The tax credit introduced by the so-called Superbonus is a tax instrument that can give rise to particularly significant criminal risks. The rules are well known: the 110% deduction can be used for documented expenses incurred by the taxpayer between 1 July 2020 and 30 June 2022. This provision applies to a number of energy-related or building works, expressly provided for by the legislator, provided that the works lead to an improvement of at least two energy classes of the building (or in any case the attainment of the highest class) and that the same are technically certified by qualified technicians with regard to compliance with the conditions required by the law. The reasons that prompted the legislator to introduce this law are obvious. The Superbonus stands - or rather, purports to stand - as a means of relaunching the economy, with particular regard to the building sector, and also ensuring a general upgrading of the country's real estate assets.
However, this profitable opportunity conceals, at the same time, several risks in terms of criminal liability. The most perceivable and, in some respects, obvious case is that of obtaining the Superbonus without being entitled to it, perhaps with the complacency and the complicity of the professionals and technicians involved in the relevant procedure. A key element will be the invoices issued in the course of the works. Qualitative or quantitative criticalities in the compilation of invoices issued, for instance, by the supplier or the certifying professional might give rise to tax offences.
Many different situations can be imagined, such as the indication of an 'inflated' value of the works in the invoice, the invoicing of 'increased' costs, the discrepancy in the header of the invoice (perhaps to a person, entitled to access the bonus, who is different from the actual beneficiary of the works). In all these cases, false invoicing, whether objective or subjective, total or partial, might easily be claimed, both as regards the issue of the false invoice (Art. 8 Legislative Decree 74/2000),and its use in tax returns (Art. 2 Legislative Decree 74/2000). The situation might, in a certain sense, worsen or in any case widen if the investigating authorities decide to claim fraud to the detriment of the State, which might theoretically be conceivable in such a case.
Special attention must also be paid to the conformity of the documents required for credit assignment. This issue thus mainly concerns professionals, such as accountants, bookkeepers, business experts, labour consultants or tax assistance centre managers. Any anomalies in this respect, in fact, might give rise to the offence of false certification.
Moreover, if the taxpayer fraudulently uses 'false' documents to obtain, obviously illegitimately, the Superbonus tax benefit, he might also be held liable for the crime of tax fraud under Art. 3, Legislative Decree no. 74/2000.
It should be borne in mind that the law is still evolving. Therefore, the picture of potential criminal risks might change again. In conclusion, the Superbonus is a great opportunity, but great care and caution should be taken in its management in order to avoid significant risks.
Filippo Ferri for Forbes, April 2022
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